Case Law Today Series

Titles

January 2007 Edition - Case Law Today

Unreasonable Force
with William Bedsworth, Justice of the Court of Appeal, State of California
IRS agents with a warrant for the parents of an 11-year-old boy encountered
the boy first. They proned him out on the driveway, held a gun to his head,
searched him, cuffed him and sat him down on the curb while they arrested
his parents. They are presently defending an unreasonable force lawsuit in
federal court. Justice Bedsworth discusses the lessons this case teaches. Case
cited: Tekle v. United States (2006) DJDAR 10587. (6:48)

Searching Dorm Rooms: Consent of University Enough?
with Jeff Rubin, Alameda County District Attorney's Office
Students have a comparable reasonable expectation of privacy in a dorm to
tenants in a rented apartment and thus getting consent to enter a dorm room
from campus security, but not the student, is not sufficient to permit entry
into the room without a warrant in the absence of exigent circumstances.
Case cited: People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183.
(16:01)

Traffic Stops: Reasonable Suspicion
with Daniel McNerney, Superior Court Judge, State of California
In determining whether an officer has reasonable suspicion to conduct a
traffic stop, the court will consider not only the articulable facts the officer
relied on, but also his/her training and experience in interpreting those facts
to be consistent with criminal activity. (8:41)

Juvenile Search Clause: Advance Knowledge Required
with Jeff Rubin, Alameda County District Attorney's Office
Evidence seized as a result of a detention of a minor with a juvenile
probation search clause must be suppressed if the detention is not supported
by reasonable suspicion and the officer is unaware of the search clause
before the detention. Case cited: In re Jaime P. (2006) 2006 WL 3437058.
(3:24)

A New Kind of Kidnapping
with William Bedsworth, Justice of the Court of Appeal, State of California
We all have a picture in our mind of what a kidnapping is, and since Penal
Code §207 defines kidnapping by reference to force and fear, our mental
picture usually involves someone being dragged away or forced into a car at
gunpoint. But in the Dalerio case, the court dealt with the attempted murder
of a nine-year-old girl and upheld a kidnapping that involved no force and
no fear. Justice Bedsworth explains this case of great importance to officers
working crimes against children. Case cited: People v. Dalerio (2006) DJDAR
14777. (6:48)

Stop Based on Officer Fabrication Requires Suppression
with Jeff Rubin, Alameda County District Attorney's Office
If officers lied about defendant’s car having broken brake light and that was
the only ground for traffic stop, evidence obtained from the car pursuant to a
search incident to the arrest of the defendant on an outstanding warrant
(that was discovered after the stop) must be suppressed. Case cited: People
v. Rodriguez (2006) 143 Cal.App.4th 1137. (6:26)

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February 2007 Edition - Case Law Today

Knock-Notice: Non-Search Warrant Cases
with Daniel McNerney, Superior Court Judge, State of California
Knock-Notice is required in some non-search warrant cases, such as parole or
probation searches. But recent U.S. Supreme Court authority does not require
suppression of evidence for non-compliance with Knock-Notice. Cases cited:
Hudson v. Michigan (2006) 126 S. Ct. 2159; In re Frank S. (2006) 142 CA4
145. (7:48)

Exigent Circumstance Entry After 911 DV Call
with Jeff Rubin, Alameda County District Attorney's Office
Officers properly entered suspect’s apartment without warrant where victim
called 911 to say she had been beaten by suspect and asked to meet officers
outside the apartment so they could accompany her inside to retrieve items.
But when officers arrived on scene, victim was nowhere to be found. Case
cited: United States v. Black (9th Cir. 2006) 466 F.3d 1143. (5:05)

Chasing a DUI Into the House
with William Bedsworth, Justice of the Court of Appeal, State of California
In 1984, the US Supreme Court ruled that Wisconsin police violated the
Fourth Amendment when they entered a private home, without a warrant
and without consent, to arrest a DUI suspect. Twenty years later, Santa
Barbara police entered the home of Daniel Thompson to arrest him for DUI –
again, without a warrant and without consent. But the California Supreme
Court approved the search and upheld Thompson’s conviction. Why? Justice
Bedsworth explains the rules pertaining to entering a house to affect a DUI
arrest. Cases cited: Welsh v. Wisconsin (1984) 466 US 740; People v.
Thompson (2006) DJDAR 6776. (7:35)

When Opening Screen Door is a "Search"
with Jeff Rubin, Alameda County District Attorney's Office
Opening a screen door without a warrant can constitute an entry for Fourth
Amendment purposes when there is no closed solid door behind the screen
door. However, in the case discussed in this video furtive movements by the
occupant suggesting an imminent attack on officers knocking at the door
provided exigent circumstances allowing the police to open the screen door.
Case cited: United States v. Arellano-Ochoa (9th Cir. 2006) 461 F.3d 1142. (8:02)

Consent and Threatening Warrants
with Daniel McNerney, Superior Court Judge, State of California
This segment discusses the factors that the court will consider in determining
whether consent is given voluntarily, including threats by an officer to get a
search warrant. Case cited: U.S. v. Rodriquez (2006) DAR 13453. (9:02)

Exigent Circumstance Entry After 911 Burglary Call
with Jeff Rubin, Alameda County District Attorney's Office
Forcible warrantless police entry into home to investigate neighbor’s calls of
burglary was improper where information police had was that so-called
burglar was ex-wife of resident, there was no sign of forced entry, police
knew from neighbor’s second call he had seen ex-wife allow another person
knocking on door to enter, police did not bother to check on alleged
restraining order barring ex-wife from property entry, and police took 40
minutes to arrive in response to follow-up call of burglary. Case cited: Frunz
v. City of Tacoma (9th Cir. 2006) 468 F.3d 1141. (12:24)

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March 2007 Edition - Case Law Today

Pushing the Miranda Envelope
with William Bedsworth, Justice of the Court of Appeal, State of California
When Jerome Alvin Anderson was interrogated, he invoked Miranda three
times. He said “I don’t wanna talk about this,””I plead the Fifth,” and “I’m
through with this; I wanna be taken into custody.” Yet his interrogation
continued and his statements were admitted against him. Justice Bedsworth
explains why these were held to be “ambiguous” and why it is unlikely to
happen very often. Case cited: Anderson v. Terhune (2006) DJDAR 14798
(11/9/06). (9:57)

Impounding Cars Without Community Caretaking Purpose
with Jeff Rubin, Alameda County District Attorney's Office
Just because a statute permits impoundment (i.e., when a driver is arrested)
does not mean the impoundment will be deemed constitutional. The
impoundment must meet some “community caretaking purpose” such as
aiding public safety or the free flow of traffic. Cases/Statutes cited: People v.
Williams (2006) 145 Cal.App.4th 756; Miranda v. City of Cornelius (9th
Cir.2005) 429 F.3d 858; South Dakota v. Opperman (1976) 428 U.S. 364;
Veh. Code § 22651(h)(1). (8:04)

Detentions: Reasonable Suspicion of Gang Activity
with Daniel McNerney, Superior Court Judge, State of California
Discusses the various issues an officer must attempt to balance when
detaining a suspected gang member, including: officer safety; duty to
investigate crime; Fourth Amendment. Cases cited: In re Stephen L. (1984)
162 CA3 257; People v. Hester (2004) 119 CA3 376; U.S. v. Mendez (2006)
DAR 14393. (9:25)

Pat Search Not Permitted Simply to Obtain ID
with Jeff Rubin, Alameda County District Attorney's Office
Police may not conduct a pat down search for identification of a suspect
detained for a traffic offense, notwithstanding the fact the suspect denies
having identification, where there is no concern that the suspect is armed and
dangerous. Cases cited: People v. Garcia (2006) 145 Cal.App.4th 782; People
v. Long (1987) 189 Cal.App.3d 77; People v. Loudermilk (1987) 195
Cal.App.3d 996. (7:31)

Stop for No Rear Plate
with William Bedsworth, Justice of the Court of Appeal, State of California
At 1:00 a.m., Raymond C. drove his new black Acura past a Fullerton Police
patrol car. The officer noted Raymond’s car had nothing on the back license
plate space: no plate, no paper dealer advertisement, nothing. He stopped
Raymond and as soon as he approached him, smelled alcohol. Raymond was
convicted of violating §32152(a). It turned out Raymond’s car was legally
registered and his temporary tag was properly displayed in the front driver’s
side windshield. Despite this, the court upheld the stop. Justice Bedsworth
explains why. Case cited: People v. Raymond C. (2006) Opinion. (8:08)

Stops Based on Requests from Other Officers
with Jeff Rubin, Alameda County District Attorney's Office
An officer may detain, arrest, or search a suspect, without any knowledge of
the reasons for the detention, arrest, or search, if the detention or arrest is
done at the request or command of another officer who does know the
reasons. Case cited: United States v. Ramirez (9th Cir. 2007) 473 F.3d
1026. (7:53)

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April 2007 Edition - Case Law Today

Search & Seizure: Monitoring Inmate Phone Calls
with Daniel McNerney, Superior Court Judge, State of California
Custodial facilities that wish to monitor and record inmate phone calls must
give the inmate clear notice that the calls may be monitored. Case cited:
People v. Windham (2006) 145 CA4th 881. (8:04)

Terry Stops of Occupant of Residence
with Jeff Rubin, Alameda County District Attorney's Office
A suspect who voluntarily opens the door of his residence in response to a
non-coercive knock-and-talk may temporarily be seized by the police outside
the home (or at the threshold of the home), provided that the police have
reasonable suspicion of criminal activity. Cases cited: United States v. Crapser
(9th Cir. 2007) 472 F.3d 1141. (10:28)

Generalized “Special Needs” Searches
with William Bedsworth, Justice of the Court of Appeal, State of California
Have you ever wondered about the legality of airport searches when you get
on a plane or the metal detectors at the courthouse? They aren’t based on
probable cause, and they sure aren’t based on consent. So how are they
legal? Justice Bedsworth uses the MacWade case to explain not only how
these searches are justified, but how officers can justify such searches at bus
terminals, government buildings, or public landmarks if the officers are
seriously concerned about the possibility of a terrorist attack. Case cited:
MacWade v. Kelly (2006) WL 2328723. (7:25)

Definition of “Using” Minor Under HS § 11353(b)
with Jeff Rubin, Alameda County District Attorney's Office
Health and Safety Code section 11353(b), which makes it illegal for an adult
to hire, employ, or use a minor to unlawfully transport, carry, sell, give away,
prepare for sale, or peddle a controlled substance, applies to adults who
bring along a child while transporting drugs in order to divert suspicion and
avoid detection by law enforcement. Case/Statute cited: People v. Duarte
(2007) 2007 DJDAR 2571; Health & Saf. Code § 11353(b). (4:19)

Search Warrants: What Happens to the Affidavit?
with Daniel McNerney, Superior Court Judge, State of California
P.C. §1541 requires the court to keep the original of the search warrant
affidavit signed by the magistrate. Cases cited: People v. Galland (2007)
146 CA4th 277; People v. Hobbs (1994) 7 C4th 948. (8:03)

PC § 487’s “Taking From Person” Requirement Expanded
with Jeff Rubin, Alameda County District Attorney's Office
Grand theft occurs when a suspect, intending to steal, causes property to
become separated from the victim’s person (i.e., causes the item to fall from
the victim’s pocket) and then gains possession of the property-- even though
when the property was actually obtained by the suspect it was no longer on
the victim’s person. Cases/statute cited: In re Jesus O (2007) 2007 DJDAR
3179; In re Eduardo D. (2000) 81 Cal.App.4th 545; Pen. Code § 487(c). (8:35)

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May 2007 Edition - Case Law Today

Detentions: Timing Can Be Critical
with William Bedsworth, Justice of the Court of Appeal, State of California
Sometimes the key to a good detention isn’t the description of the suspect or
their car or what they are wearing, but when they are encountered. Justice
Bedsworth discusses cases in which what could have been an illegal detention
was changed into a legal one by considering the time at which the suspects
were encountered. Cases cited: People v. Anthony (1970) 7 Cal App 3d 751;
People v. Conway (1994) 25 Cal App 4th 385; People v. Lloyd (1992) 4 Cal
App 4th 724. (6:15)

Definition of "Firearm" Under PC § 12021
with Jeff Rubin, Alameda County District Attorney's Office
It is not necessary that a felon possess the frame or receiver of a firearm to
be found in violation of Penal Code section 12021, although possession of
either would be sufficient to violate that statute. Case/statute cited: People v.
Arnold (2006) 145 Cal.App.4th 1408; Pen. Code §§ 12021, 12001. (9:58)

Miranda: Questioning An Injured Suspect
with Daniel McNerney, Superior Court Judge, State of California
Courts will carefully evaluate the circumstances surrounding the interrogation
of an injured suspect to determine whether his/her statements are voluntary.
Cases cited: People v. Breaux (1992) 1 C4 281; People v. Barker (1986)
182 CA3d 921; Campaneria v. Reid (1989) 891 F2d 1014; Beecher v.
Alabama (1972) 408 U.S. 237; People v. McPherson (1970) 2 C3d 109;
Mincey v. Arizona (1978) 437 U.S. 385; People v. Perdomo (2007) 147 CA4
605. (7:11)

When Lies to Police Make Someone an Accessory
with Jeff Rubin, Alameda County District Attorney's Office
Passive failure to reveal a crime to police, refusal to give information, or
denial of knowledge motivated by self-interest does not make someone an
accessory in violation of PC Section 32. However, affirmatively
misrepresenting facts concerning a felony, with knowledge the principal
committed the crime and with the intent that the principal avoid or escape
from arrest, trial, conviction, or punishment does make a person an
accessory. Covers cases discussing when lying to police can make someone
an accessory to a felony. Cases/Statute cited: People v. Plengsangtip (2007)
2007 DJDAR 3702; In re I.M. (2005) 125 Cal.App.4th 1195; Pen. Code §
32. (10:13)

How Not to Prepare a Search Warrant
with William Bedsworth, Justice of the Court of Appeal, State of California
The Luong case is a perfect example of what is not probable cause and may be
the worst attempt at a probable cause affidavit Justice Bedsworth has seen in
35 years in the law. Justice Bedsworth uses this case as a review of search
warrant preparation. Case cited: United States v. Luong (2006 DJDAR
16115) (December 13, 2006). (7:45)

"Medical Marijuana" Claims and Vehicle Searches
with Jeff Rubin, Alameda County District Attorney's Office
The fact that an occupant of a vehicle has a doctor’s recommendation allowing
him to lawfully possess “medical” marijuana does not mean an officer who
smells marijuana coming from the vehicle cannot search the vehicle for
additional marijuana. Cases/statutes cited: People v. Strasburg (2007) DJDAR
3798; Health & Saf. Code, §§ 11362.5, 11362.7 et seq. (12:52)

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June 2007 Edition - Case Law Today

Search and Seizure: Workplace Privacy
with Daniel McNerney, Superior Court Judge, State of California
Although employees may have a reasonable expectation of privacy from
government intrusion in the workplace, employers retain joint control over
such areas and may consent to a search. Cases cited: Mancusi v. DeForte
(1968) 392 U.S. 364; U.S. v. Ziegler (2007) DAR 1345; Ortega v. Oregon
(1987) 480 U.S. 709. (7:07)

Detention Based on Anonymous Tip of "Shots Fired"
with Jeff Rubin, Alameda County District Attorney's Office
An anonymous but recorded 911 call stating shots were fired provided
grounds for detaining a suspect where the suspect matching the physical
description was found in the area five minutes later, the suspect appeared to
be holding a heavy object at his waistline, and the caller appeared to have
firsthand knowledge of the crime even though she declined to be contacted
and only heard-- but did not see-- suspect fire or hold gun. Cases cited:
People v. Lindsay (2007) 145 Cal.App.4th 1390; People v. Dolly (2007) 40
Cal.4th 458; Florida v. J.L. (2000) 529 U.S. 266. (13:55)

Search of Closed Container in Trunk
with William Bedsworth, Justice of the Court of Appeal, State of California
As a general rule, probable cause to search a car includes every area of the
car where the item searched for could be found. But consent searches are
always subject to limitation-- the person giving consent can limit it any way
he/she sees fit. This is an unusual case in which the court held that the police
officers limited the scope of the search by asking the subject if he minded if
police made a “real quick check” of the car. Case cited: People v. Cantor
(2007) 149 CA 4th 961. (5:50)

Car Chases and the Fourth Amendment
with Jeff Rubin, Alameda County District Attorney's Office
A peace officer can, consistent with the Fourth Amendment, take actions such
as applying a push bumper to the rear of the fleeing car, in attempting to
terminate a dangerous high-speed car chase that threatens the lives of
innocent bystanders even if the police actions place the fleeing motorist at
risk of serious bodily injury or death. Case cited: Scott v. Harris (2007) 127
S.Ct. 1769. (11:58)

Search and Seizure: Forced Taking of Fingerprints
with Daniel McNerney, Superior Court Judge, State of California
Officers may force a suspect to submit to fingerprint exemplars based on
reasonable suspicion, provided the means for taking the exemplars does not
“shock the conscience.” Cases cited: Schmerber v. California (1966) 384 U.S.
757; Davis v. Mississippi (1969) 394 U.S. 721; Hayes v. Florida (1985) 470
U.S. 811; People v. Williams (1969) 71 C2d 614; Rochin v. California (1952)
342 U.S. 165; People v. Parham (1963) 60 C2d 378; People v. Sanders
(1969) 268 CA 2d 802; People v. Herndon (2007) 149 CA4 274. (8:49)

Discharging Firearm Into Jointly Owned Car
with Jeff Rubin, Alameda County District Attorney's Office
Discharging a firearm into an unoccupied vehicle violates Penal Code section
247(b) if the vehicle is jointly owned and the person discharging the firearm
does not have permission to do so from all owners of the vehicle. Case/
statute cited: People v. Shadden (2007) DJDAR 5670; Pen. Code, § 247(b). (2:44)

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July 2007 Edition - Case Law Today

Car Stops for Missing Plates
with William Bedsworth, Justice of the Court of Appeal, State of California
In People v. Saunders, the Supreme Court upheld a vehicle stop for missing
plates despite the display of a temporary operating permit. Now one of the
state’s appellate courts has significantly limited the application of Saunders,
and it’s important to understand the distinctions involved. Justice Bedsworth
explains what will be necessary to support a vehicle stop for missing or
expired tags if a temporary operating permit is displayed. Cases cited:
People v. Saunders (2006) 38 Cal 4th 1129; People v. Hernandez (2007)
146 Cal. App. 4th 773. (5:45)

Limits on Asking for Proof of Insurance
with Jeff Rubin, Alameda County District Attorney's Office
A driver cannot be cited for lack of proof of financial responsibility under
Vehicle Code section 16028 unless he/she is involved in an accident or is
being cited for another code violation. Thus, once an officer determines that
a driver has not committed any traffic violation, extending the detention to
ask for proof of insurance is improper. Case/statute cited: People v. Verdugo
(2007) 2007 WL 1347679; Veh. Code, § 16028. (5:08)

Search and Seizure: The Last Word on Passengers
with Daniel McNerney, Superior Court Judge, State of California
The U.S. Supreme Court has ruled that a passenger in a vehicle stopped by
police is “detained” to the same degree the driver is, regardless of whether
police have taken independent action with respect to the passenger. Case
cited: Brendlin v. California (2007) 127 S.Ct. 1508. (6:04)

Definition of "Public Place" for PC § 647(f)
with Jeff Rubin, Alameda County District Attorney's Office
For purposes of statutes prohibiting certain conduct, such as drinking or
intoxication, in a “public place,” whether a location is a “public place” is
determined by whether a member of the public can access the place “without
challenge.” Thus, an officer could not properly detain someone for carrying
a beer can in the courtyard of an apartment complex surrounded by a fence
and locked gates. Case/statute cited: People v. Krohn (2007) 149 Cal.
App.4th 1294; Pen Code, § 647(f). (7:21)

Discovery Duties of Police
with William Bedsworth, Justice of the Court of Appeal, State of California
Every police officer should be aware of the prosecution’s duty to provide the
defense with any exculpatory evidence they have. Under Brady v. Maryland,
the prosecution must turn over to the defense any information they have
that tends to show the defendant is not guilty. People v. Johnson is a case in
which the prosecution, which includes the police, failed to do that. The result:
reversal of the first degree murder conviction. Justice Bedsworth describes
the facts of Johnson to make it clear just how closely this rule is applied.
Cases cited: Brady v. Maryland (1996) 373 U.S. 83; People v. Johnson
(2006) 142 Cal. App. 4th 776. (7:51)

When "Custody" Occurs in Jails for Miranda Purposes
with Jeff Rubin, Alameda County District Attorney's Office
Just because a suspect is in jail does not mean the suspect is “in custody” for
Miranda purposes. This video outlines the factors used in determining when it
is necessary to give Miranda warnings to an incarcerated suspect before
interviewing that suspect about a crime committed while the suspect was
already in jail awaiting trial on a different crime. Case cited: People v.
Macklem (2007) 149 Cal.App.4th 674; People v. Fraduie (2000) 80
Cal.App.4th 15. (8:25)

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August 2007 Edition - Case Law Today

Detentions: Questioning Detainees

About Other Matters
with Daniel McNerney, Superior Court Judge, State of California
The Federal 9th Circuit Court of Appeal has reversed its previous decision in
U.S. v. Mendez and now holds that police may lawfully question a detainee
about matters unrelated to the purpose of the detention, so long as such
questioning does not prolong the detention. Cases cited: U.S. v. Mendez
(2006) 476 F3d 1162; Illinois v. Caballes (2005) 543 U.S. 405; Muehler v.
Mena (2005) 544 U.S. 93; U.S. v. Mendez (2007) 476 F3d 1077. (7:26)

Knock and Talks Based on Anonymous Tips
with Jeff Rubin, Alameda County District Attorney's Office
Police may contact a homeowner and seek consent to enter and search the
residence (conduct a knock and talk) without having reasonable suspicion of
criminal activity. Thus, whether police were prompted to make the contact
based on a corroborated or uncorroborated anonymous tip is irrelevant.
Case/statute cited: People v. Rivera (2007) 59 Cal.Rptr.3d 473. (2:54)

“Excuse Me, May I Speak To You?”
with William Bedsworth, Justice of the Court of Appeal, State of California
An off-duty peace officer acting as mall security received a tip that a white
male wearing a tank-top and covered with tattoos was observed putting a
handgun in his boot before he entered the mall. Acting on this tip, the officer
approached a suspect and asked, “Excuse me, may I speak to you?”
Receiving a positive response, he asked the man if he had a handgun. When
the man said he did, the officer lifted his shirt where it was bulging and
retrieved a 9mm Glock. Justice Bedsworth explains why this was a legal
contact. Case cited: United States v. Orman (2007 DJDAR 7195, 5/23/07).
(6:54)

When Relying On Citizen-Witness For PC Is Risky
with Jeff Rubin, Alameda County District Attorney's Office
Although information from a victim or chance witness is usually considered
sufficiently reliable to provide probable cause for an arrest by itself, this is
not always true when the police are aware of circumstances casting doubt on
the information provided. This video discusses a case involving a successful
suit against officers who arrested a sexual assault suspect where the victim’s
allegations were not very specific and had internal inconsistencies, the victim
had a bias, and monitored contacts between the suspect and the victim
suggested the suspect was not guilty. Case/statute cited: Gillan v. City of San
Marino (2007) 147 Cal.App.4th 1033; Civ. Code, § 52.1. (10:51)

Search & Seizure:
Undercover Investigations of First Amendment Organizations
with Daniel McNerney, Superior Court Judge, State of California
Police do not need reasonable suspicion of criminal activity in order to
conduct an undercover investigation of First Amendment organizations.
Cases cited: Zurcher v. Stanford Daily (1978) 436 U.S. 547; U.S. v. Mayer
(2007) DAR 8313. (7:47)

Danger In Serving Warrant Justifies Nude Detention
with Jeff Rubin, Alameda County District Attorney's Office
Officers serving a warrant may take reasonable safety measures. If a
suspect might possibly be armed, ordering the occupants (clothed or
unclothed) out of bed at gunpoint is not unreasonable. The fact the persons
detained are of a different race than the persons named in the warrant does
not alter this principle. Cases cited: Los Angeles County v. Rettele (2007)
127 S.Ct. 1989; Muehler v. Mena (2005) 544 U.S. 93. (8:19)

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September 2007 Edition - Case Law Today

Search Warrants: Excessive Force in Executing
with William Bedsworth, Justice of the Court of Appeal, State of California
One of the least-discussed aspects of serving a search warrant is the use of
excessive force and the unnecessary destruction of property. An otherwise
perfectly valid warrant can be thrown out if a court determines excessive
force was used or property was unnecessarily destroyed. Justice Bedsworth
uses the Ankeny case as model for analyzing the propriety of police action.
Case cited: United States v. Ankeny (2007) Daily Journal DAR 8998 (6/20/07). (9:03)

Use of Ruse to Seize Vehicle
with Jeff Rubin, Alameda County District Attorney's Office
Police may engage in some use of stealth and deceit in seizing property so
long as such use is reasonable, i.e., when the government’s justification for
engaging in the ruse outweighs the intrusion on the suspect’s interests.
Discusses a case upholding an elaborate ruse to seize a car where the police
had the right to seize the property but needed to prevent the delivery of
drugs while simultaneously concealing an ongoing investigation. Case cited:
United States v. Alverez-Tejada (9th Cir. 2007) 2007 WL 1651268. (9:47)

Search & Seizure: Abandoned Property
with Daniel McNerney, Superior Court Judge, State of California
The mere fact that a person uses a false name and/or address is not
sufficient to establish abandonment of property. Case cited: People v.
Pereira (2007) 150 CA4 1106. (8:25)

License Check Is Not a Search
with Jeff Rubin, Alameda County District Attorney's Office
A license plate check does not constitute a Fourth Amendment search.
Therefore, an officer does not need any reasonable suspicion to run a license
plate check. Case cited: United States v. Diaz-Castaneda 2007 WL 2044244. (5:46)

Traffic Stops: Ordering Out and Inventory
with William Bedsworth, Justice of the Court of Appeal, State of California
In Hoyos, police stopped a car for a broken license plate light. When neither
the driver nor his passenger had a license, they knew they had to impound
the car and began to inventory it. When they found a 9mm magazine with
12 rounds in it-- and a loaded 9mm pistol in the car-- they intensified their
search and found 28 lbs. of marijuana in the trunk. Long story short: Their
broken light violation turned up the murderers of a local drug dealer and his
wife. Justice Bedsworth discusses the search and seizure aspects of the case.
Case cited: People v. Hoyos (2007) Daily Journal DAR 11132 (7/24/07).
(5:45)

Temporary Delay of Packages in Transit
with Jeff Rubin, Alameda County District Attorney's Office
No seizure implicating the Fourth Amendment occurs if a package in transit is
detained in a manner that does not significantly interfere with its timely
delivery in the normal course of business. Thus, a 10-minute delay of a
FedEx package en route, during which a drug-sniffing dog alerted to its
contents, did not need to be justified by reasonable suspicion. Case cited:
United States v. Hoang (9th Cir. 2007) 486 F.3d 1156. (7:14)

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October 2007 Edition - Case Law Today

Detentions: Walking Away From A Consensual Encounter
with Daniel McNerney, Superior Court Judge, State of California
The mere fact that a person or suspect refused to participate or walked away
from a consensual encounter with police does not establish reasonable
suspicion for detention. Cases cited: People v. Perrusquia (2007) 150 CA4
228; Florida v. Bostick (1991) 501 U.S. 429. (10:22)

Crime Lab Searches Following Vehicle Seizure
with Jeff Rubin, Alameda County District Attorney’s Office
In general, a warrant authorizing seizure of items also permits seizure of
parts of the items listed– even though the “parts” may be microscopic.
Seizing a vehicle and taking it back to the crime lab for forensic analysis is
permissible if the warrant allows a search of the vehicle or there is probable
cause to believe the vehicle may contain evidence of a crime, and the
evidence sought can only practically be detected at the crime lab. Completion
of the search may be delayed if the delay is reasonable. Cases/statute cited:
People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85; People v.
Larkin (1987) 194 Cal.App.3d 650; Pen. Code § 1534. (11:54)

Burglary Tools: Penal Code §466
with William Bedsworth, Justice of the Court of Appeal, State of California
Penal Code §466 prohibits the possession of “burglary tools” with the intent
to break into a building. The recent case of Southard addresses the questions
of what constitutes burglary tools and how can we tell if they were possessed
with the intent to break into a building. Case cited: People v. Southard
(2007) 152 Cal. App. 4th 1079. (7:17)

Monitoring E-Mail & Internet Activity
with Jeff Rubin, Alameda County District Attorney’s Office
Internet subscribers do not have a reasonable expectation of privacy, under
the Fourth Amendment, in their to/from e-mail addresses and the addresses
of the websites they visit. However, from a practical standpoint, obtaining
the information will still require a court order akin to the order necessary to
get a pen register placed. Case cited: United States v. Forrester 2007 WL
2120271. (10:37)

Weapons Screening (Revisited)
with Daniel McNerney, Superior Court Judge, State of California
The courts area beginning to move away from the view that weapons
screening searches are justified based on “implied consent.” Rather, such
searches are now viewed as “administrative searches” justified by the
government’s “special need” to ensure weapons are not being carried into
certain locations that could pose a danger to public safety (i.e. airplanes).
Cases cited: U.S. v. Aukai (2007) U.S. App. 18995; U.S. v. Biswell (1972)
406 U.S. 311; Michigan State Police v. Sitz (1990) 496 U.S. 444. (9:09)

Limits On Arrests for Trespassing
with Jeff Rubin, Alameda County District Attorney’s Office
Simply being present on private property without the permission of the
owner, without more, does not constitute criminal trespass. This video
discusses why a suspect who was present in a fenced-in area of a housing
cooperative was not in violation of any California loitering or trespassing
statute. Case/statutes cited: Edgerly v. City and County of San Francisco
(9th Cir. 2007) 2007 WL 2034040; Pen. Code §§ 602(l),(m); 647(h);
602.5; and 602.8. (11:31)

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November 2007 Edition - Case Law Today

Can We Search This Computer?
with William Bedsworth, Justice of the Court of Appeal, State of California
In Adjani, police with a warrant for Adjani’s home that included computers,
found two computers: Adjani’s, and one that they were told was Reinhold’s.
They seized both. Was that legal? Did they need a new warrant to search
Reinhold’s computer? Justice Bedsworth’s answers may surprise you. Case
cited: United States v. Adjani (9th Circuit 2006) 452 F3d 1140. (6:13)

Forcible Entry Pursuant to Arrest Warrant
with Jeff Rubin, Alameda County District Attorney’s Office
To forcibly enter a home to serve an arrest warrant, an officer must have
probable cause to believe the person named in the warrant resides at the
home and is presently inside the home. Circumstantial evidence of the
person’s presence can provide such probable cause where the officers do not
actually see or hear the person inside the house. Case cited: United States v.
Diaz (9th Cir. 2007) 491 F.3d 1074. (9:07)

Miranda: Custodial Interrogation
with Daniel McNerney, Superior Court Judge, State of California
Interviewing suspects at a police station is likely to be viewed as “custodial”
unless the suspect has voluntarily agreed to come to the station for the
interview, and the officer makes clear that the suspect is not under arrest,
does not have to answer questions, and can leave at anytime. Case cited:
People v. Leonard (2007) 40 C4th 1370. (9:01)

Detentions for Past Misdemeanors or Infractions
with Jeff Rubin, Alameda County District Attorney’s Office
In assessing the reasonableness of a stop to investigate a past misdemeanor
or other infraction, courts must look at the potential risk to public safety
posed by the offense. Thus, it was unreasonable for an officer to make a
traffic stop of a person on suspicion of previously having played his music
too loudly, especially where the officers did not pursue alternative means of
identifying the suspect short of detaining suspect. Case cited: United States v.
Grigg 2007 WL 2379615. (12:08)

Free Speech: How to Lose Your Job
with William Bedsworth, Justice of the Court of Appeal, State of California
Ronald Dible lost his job with the Chandler (AZ) Police Department because
he maintained a sexually explicit website featuring both him and his wife. He
complained this violated his civil rights, including his First Amendment rights
to speech, freedom of association and privacy. Justice Bedsworth explains
why he lost and what standards govern off-duty speech by officers. Case
cited: Dible v. City of Chandler (2007 Daily Journal) DAR 13692, September
6, 2007. (7:48)

Talking to Suspect Before/After Charging
with Jeff Rubin, Alameda County District Attorney’s Office
Discusses the rules about interviewing a suspect who has retained counsel
before he/she has been charged with the crime that is the subject of the
interview and contrasts those rules with the rules that apply after the suspect
has been charged with the crime that is the subject of the interview. Cases
cited: People v DePriest (2007) 42 Cal.4th 1; United States v. Harrison (9th
Cir. 2000) 213 F.3d 1206. (8:29)

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December 2007 Edition - Case Law Today

Shackling of Prisoners
with Daniel McNerney, Superior Court Judge, State of California
In proceedings other than jury trials, the court must still make a
determination that shackling is appropriate in each individual case based on
the nature of the case and the history and behavior of the defendant. Cases
cited: People v. Harrington (1871) 42 Cal. 165; People v. Duran (1976) 42
C3d. 282; People v. Fierro (1991) 1 C4th 173; Tiffany A. v. Superior Court
(2007) 150 CA4th 1344; Solomon v. Superior Court (1977) 122 CA 3d 532;
People v. Prado (1977) 67 CA3d 267. (8:39)

PC to Arrest Prevents Civil Liability
with Jeff Rubin, Alameda County District Attorney’s Office
Describes a case illustrating the principle that where it is reasonable to
believe the accusations of a citizen witness that a suspect had committed a
crime, the officers will generally be immune from suit for making an arrest
based on that information. In the case discussed, the officer had probable
cause to arrest a teacher for sexual abuse of a 10-year-old student, where
officer used his experience and training in sexual abuse to evaluate the
student’s story and “tested” the veracity of student’s account through various
techniques. Case cited: John v. City of El Monte (9th Cir. 2007) 2007 WL
2781904. (11:14)

What Do We Know About the Victim?
with William Bedsworth, Justice of the Court of Appeal, State of California
Police investigating a crime focus on their suspect or arrestee. But they
should not ignore information about the victim. In this case, a California
murder conviction was reversed because the court did not allow presentation
by the defense of information about the victim. Justice Bedsworth discusses
the case and reminds police to learn as much as they can about all parties to
the crime. Case cited: Parle v. Runnels (07 Daily Journal 15559, October
13, 2007). (6:32)

PC to Arrest for Possessing Counterfeit Money
with Jeff Rubin, Alameda County District Attorney’s Office
City police officers lacked probable cause to arrest suspect for passing an
allegedly counterfeit bill where there was no evidence suspect had knowledge
bill was counterfeit or intended to defraud and there was evidence
undermining the existence of such knowledge and intent. Case cited: Rodis v.
City and County of San (9th Cir. 2007) 499 F.3d 1094. (9:37)

Border Searches: Letters Within Packages
with Daniel McNerney, Superior Court Judge, State of California
If a “border search” of a package is otherwise lawful, the search may include
review of written material and letters within the package, even if they are in
a sealed envelope. Case cited: U.S. v. Seljan (2007) DAR 12361. (8:20)

Forcing Suspect Objecting to Frisk Into Compliance
with Jeff Rubin, Alameda County District Attorney’s Office
An officer may not use pain-inflicting force to ensure a suspect submits to a
frisk based solely on the fact that suspect claims he is physically incapable of
complying with a request to place his arms behind his back where
alternatives methods of conducting a frisk exist that would not cause the
suspect pain. Case cited: Winterrowd v. Nelson (9th Cir. 2007) 480 F.3d
1181. (11:36)

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