Case Law Today Series

Titles

January 2008 Edition - Case Law Today

He Copped Out to Grandma
with William Bedsworth, Justice of the Court of Appeal, State of California
When a suspect invokes his/her Miranda rights, the Fifth Amendment is
implicated, usually referred to as the right to silence or the right against selfincrimination.
But once a suspect has counsel, the Sixth Amendment right to
counsel is involved. Justice Bedsworth examines the Thornton case (where
the defendant was interrogated by his grandmother) to explain why peace
officers need to be aware of the difference between these two constitutional
rights. Case cited: People v. Thornton (2007) 41 Cal 4th 391. (7:38)

Entering Home to Serve Misdemeanor Bench Warrant
with Jeff Rubin, Alameda County District Attorney’s Office
A valid arrest warrant carries with it the right to enter a residence to make
the arrest regardless of whether it is a felony arrest warrant or a
misdemeanor bench warrant for failure to appear. Case cited: United States
v. Gooch (9th Cir. 2007) 2007 WL 3197083. (2:35)

School Searches: Private Body Parts
with Daniel McNerney, Superior Court Judge, State of California
The legality of a search of a student’s private areas will depend on the size of
the items of contraband sought, the manner in which the search is conducted,
and the importance of the governmental interest at stake. Cases cited: New
Jersey v. Tlo (1985) 469 U.S. 325; Redding v. Safford Unified School District
(2007) DAR 14770. (9:01)

Interpretation of "Burglary Tools" Broadened
with Jeff Rubin, Alameda County District Attorney’s Office
A slingshot and a box cutter, even though not specifically listed in Penal Code
section 466, can qualify as burglary tools. The definition of burglary tools is
broader than indicated in previous case law. Cases cited: People v. Kelly
(2007) 154 Cal.App.4th 961; People v. Gordon (2001) 90 Cal.App.4th 1409;
Pen. Code § 466. (7:38)

Medical Marijuana: Returning the Weed
with William Bedsworth, Justice of the Court of Appeal, State of California
Justice Bedsworth recently authored an opinion requiring the City of Garden
Grove to return eight grams of marijuana to a man whose possession case
had been dismissed under the California Compassionate Use Act because he
had an order from a licensed physician. He explains why this has NO impact
on an officer's day-to-day enforcement of California law. Case cited: Garden
Grove v. Superior Court. (6:18)

Consensual Encounters Inside the Home
with Jeff Rubin, Alameda County District Attorney’s Office
A consensual encounter can occur inside a residence. Such an encounter is
not inherently coercive and is not subject to heightened scrutiny just because
it occurs in a home. Consensual encounters in the home are treated just like
consensual encounters on the street. It is not necessary for an officer to ask
permission to initiate a conversation with a person or inform the person they
do not have to speak with the officer just because they encounter the person
in a home. Case cited: People v. Rivera (2007) 156 Cal.App.4th 60. (6:54)

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February 2008 Edition - Case Law Today

Search & Seizure: Police Stand-Offs
with Daniel McNerney, Superior Court Judge, Orange County, CA
Even during a police standoff with a suspect, police are not relieved of their
obligation to seek a warrant if the opportunity presents itself. Case cited:
Fisher v. San Jose (2007) DJDAR 17215. (8:37)

Spotlight Plus Rush Equals Detention
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Even if an officer does not actually command a suspect to do anything, if an
officer illuminates the suspect with a police spotlight and then rushes directly
at the suspect— asking about his parole or probation status and
disregarding the suspect’s indication that he was merely standing outside his
home— the officer will be deemed to have detained the suspect by his
nonverbal behavior. Case cited: People v. Garry (2007) 156 Cal.App.4th
1100. (7:21)

Give Them All the Information
with William W. Bedsworth, Appellate Court Justice, State of California
Justice Bedsworth analyzes the recent Jernigan case to explain the
obligations of the prosecutor, including the police, to provide the defense all
important information. Case cited: United States v. Jernigan (2007 C.D.O.S.
8052). (5:39)

Crossing Limit Line Not Okay Per VC §22450
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Vehicle Code section 22450 requires that a driver approaching a stop sign at
the entrance to, or within, an intersection, must “stop at a limit line,” if there
is a marked limit line. The statute mandates a full stop before any part of
the vehicle crosses the limit line. Case/statute cited: People v.Binkowski
(2007) 68 Cal.Rptr.3d 741; Veh. Code § 22450. (3:48)

Miranda: Statements To Jail Psychiatrist
with Daniel McNerney, Superior Court Judge, Orange County, CA
This segment discusses the circumstances under which a defendant’s
statements to a jail psychologist may or may not be admissible at trial.
Cases cited: Beaty v. Schriro (2007) DAR 17487; U.S. v. D.F. (1995) 63 F3d
671. (8:09)

Kicking In Door Can Be Burglary
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
So long as a suspect has the intent to commit a felony or a theft, kicking in
the door to a building can be sufficient “entry” for purposes of establishing a
completed burglary even if no portion of the suspect’s body actually breaks
the plane of the building. Case/statute cited: People v. Calderon 2007 WL
4418111; Pen. Code § 459. (5:17)

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March 2008 Edition - Case Law Today

Vehicle Code §21801(a): Left Turn Violation
with William W. Bedsworth, Appellate Court Justice, State of California
Sixteen years ago, Justice Bedsworth wrote his first published opinion on
whether a driver stopped at a traffic signal had to wait for opposing traffic to
clear before making his turn. On the theory that there might be a few people
working traffic enforcement who weren’t doing so in 1992, he explains
Vehicle Code §21801(a) and the Marsh case. Case cited: People v. Marsh
(1992) 8 Cal. App. 4th Supp. 1. (5:53)

Qualifying as a "Marijuana for Sale" Expert
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
In order for an officer to qualify as an expert in the possession of marijuana
for sale when a medicinal marijuana defense is raised, the officer must be
familiar with the patterns of lawful possession of “medicinal marijuana”
(under the Compassionate Use Act) so as to be able to differentiate between
persons who possess marijuana lawfully for their own consumption and those
possessing it unlawfully with the intent to sell. Cases cited: People v. Chakos
(2007) 158 Cal.App.4th 357; People v. Hunt (1971) 4 Cal.3d 231. (10:19)

Search and Seizure: Justification for Probation Searches
with Daniel McNerney, Superior Court Judge, Orange County, CA
Probation searches require no showing of particularized suspicion of
wrongdoing, so long as they are not conducted in an unreasonable manner
or for purposes of harassment. Cases cited: People v. Medina (2008) DAR
846; People v. Bravo (1987) 43 C3 600; Samson v. California (2006) 126 S.
Ct. 2193. (8:26)

Proving Knowledge of a Drug's Narcotic Nature
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Showing a suspect is in constructive possession of a small amount of drugs is
not, by itself, sufficient to convict the person of the crime of possession
because it must also be shown the suspect knew of the drugs’ narcotic nature.
Discusses the kind of additional evidence needed to prove, beyond a
reasonable doubt, that a suspect had the required knowledge. Case/statute
cited: People v.Tripp (2007) 151 Cal.App.4th 951; Health & Saf. Code §
11377. (11:28)

More on Temporary Operating Permit Display
with William W. Bedsworth, Appellate Court Justice, State of California
In Dean the court dealt with a detention based upon possible expired
registration. The officer saw that the car had no current registration sticker
on its license plate and pulled it over. In fact, the driver had a temporary
operating permit, which may have been displayed, but since the officer said
he couldn't recall if he looked for a temporary operating permit, it was
impossible to tell. Justice Bedsworth explains why the court suppressed the
cocaine and marijuana found in the car and what you need to keep from
having the same thing happen to you. Case cited: People v. Dean (2007)
DJDAR 18882 (12/21/07). (8:39)

"Seizing" the Police During Departmental Investigation
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Discusses a case holding sheriff’s deputies who were the focus of a criminal
investigation were not seized, for Fourth Amendment purposes, just because
they were ordered by their supervisor to stick around the station for
questioning after their shift ended. The various factors that went into
determining whether a seizure had occurred are discussed. Case cited:
Aguilera v. Baca (9th Cir. 2007) 510 F.3d 1161. (14:08)

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April 2008 Edition - Case Law Today

Miranda: Recording Co-Defendants’ Conversation
with Daniel McNerney, Superior Court Judge, Orange County, CA
Placing co-suspects together in a seemingly private place (police car, jail cell,
interview room, etc.) in hopes they will discuss the case and make
incriminating statements is not interrogation within the meaning of Miranda.
Cases cited: People v. Jefferson (2008) 158 CA4 830; Rhode Island v. Innis
(1980) 446 U.S. 291. (7:53)

POBRA Not Applicable to Criminal Investigations
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
The statutory provisions of the Public Safety Officers Procedural Bill of Rights
Act (POBRA) that require an employing agency to provide certain safeguards
to officers during an administrative investigation do not apply when the
investigation is concerned solely and directly with alleged criminal activities.
Case/statute cited: Van Winkle v. County of Ventura (2007) 158 Cal.App.4th
492; Gov. Code § 3303. (7:58)

Traffic Enforcement Outside Jurisdiction
with William W. Bedsworth, Appellate Court Justice, State of California
Police officer returning to his city after testifying in court observes a traffic
violation (CVC §21453(a) failure to stop for red light) outside his city and
issues a citation for it. The driver complains that the officer had no
jurisdiction outside the limits of the city by which he was employed. Justice
Bedsworth explains why this driver won, but very few others should. Case
cited: People v. Landis (2007) 156 Cal. App. 4th Supp. 12. (7:48)

Miranda and Suspects Calls To Police From Jail
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A phone conversation with police investigators initiated by a suspect in jail on
an unrelated offense does not constitute “custodial interrogation” for
Miranda purposes. This holds true even if the phone call was made after the
officers had earlier interviewed the suspect and had taken a non-coerced
statement in technical violation of the suspect’s Miranda rights. Cases cited:
Tawfeq Saleh v. Fleming (9th Cir. 2008) 512 F.3d 548; Missouri v. Seibert
(2004) 542 U.S. 600. (7:49)

Vehicle Stops: Border Areas
with Daniel McNerney, Superior Court Judge, Orange County, CA
A police officer may combine his/her observations with his knowledge of the
area and his/her experience with the behavior of persons engaged in
particular kinds of criminal activity in determining whether this is reasonable
suspicion for a detention. Case cited: U.S. v. Berber (2007) DAR 18659.
(7:09)

Motorcycle Helmet Law Violation Not Necessarily a Fix-It Ticket
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Although violations of the motorcycle helmet law may potentially be
correctable and thus subject to a “fix-it” ticket, an officer is justified in
issuing a regular ticket to a suspect wearing a soft cloth cap to which is
affixed a DOT sticker since such a cap is obviously not in compliance with the
helmet law and presents an immediate safety hazard. Case/statutes cited:
Depart of California Highway Patrol v. Superior Court (Quigley) (2008) 158
Cal.App.4th 726; Veh. Code §§ 27802, 27803, 40610, 40303.5. (6:54)

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May 2008 Edition - Case Law Today

Consensual Encounter Turns Into Detention
with William W. Bedsworth, Appellate Court Justice, State of California
In this case, Portland police engaged in a consensual encounter, received
permission to search Washington and his car, searched both and found he was
illegally in possession of a firearm. The court found the consensual encounter had
been escalated by the police into an illegal detention. Justice Bedsworth feels this
case is wrong, but it is nonetheless the law, so it is important to understand why
the court said the consensual encounter turned into a detention. Case cited:
United States v. Washington (2007 DJDAR 8986). (9:27)

False Report of Bomb: Required Intent?
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Penal Code section 148.1(a), which makes it unlawful to falsely report that a
bomb or explosive has been or will be placed or secreted in any public or private
place to various persons or organizations, does not require that the person
making the report intend for the report to be taken seriously or that the persons
hearing the report take the report seriously. Case/statute cited: Levin v. United
Air Lines, Inc. (2008) 158 Cal.App.4th 1002; Pen. Code § 148.1(a). (18:05)

Search and Seizure: Emergency Doctrine
with Daniel McNerney, Superior Court Judge, Orange County, CA
Under the “Emergency Doctrine” police may enter a residence without a warrant
if they have probable cause to believe that a person in the residence is in
imminent danger of death or serious injury. Cases cited: Mincey v. Arizona
(1978) 437 U.S. 385; People v. Celis (2004) 33 C4 667; People v. Ammons
(1980) 103 CA3 20; People v. Smith (1972) 7 C3 282; People v. Seminoff
(2008) 159 CA4 518. (7:06)

Warrantless Entry to Seize Small Amount of Marijuana
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
The exigent circumstances exception to the warrant requirement does not permit
entry into a home to prevent the imminent destruction of evidence of a minor
crime. Possession of less than 28.5 grams of marijuana is a “minor” crime since
it does not carry any jail time. Thus, officers violated the Fourth Amendment by
making a nonconsensual entry into a home based on smelling marijuana and
seeing a person inside the home smoking marijuana. Case/statute cited: People
v. Hua (2008) 158 Cal.App.4th 1027; Health & Saf. Code § 11357(b). (7:34)

Vehicle Stop Based on Air Freshener
with William W. Bedsworth, Appellate Court Justice, State of California
California courts have decided whether a vehicle stop can be based upon
obstruction of the driver’s vision by a hanging air freshener twice. In 2003, they
held it could not, but in December 2007, they held it could. Justice Bedsworth
explains why the results of these cases were different and what you have to be
able to say to make a violation of §26708(a)(2). Cases and statutes cited:
People v. White (2003) 107 Cal. App. 4th 636; People v. Colbert (2007) DJDAR
18285, Vehicle Code §26708(a)(2). (7:42)

Warrantless Entry Based on Hysterical Call
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Police properly entered a home without a warrant, pursuant to the emergency
exception to the Fourth Amendment, where there was a telephone call at 5:00 in
the morning to the police from “a hysterical male” who told the dispatcher to
“[g]et the police over here now." An officer from the neighborhood noticed a
vehicle outside the house he did not recognize and saw someone unfamiliar
walking into the house before police entry, the front door to the house was ajar,
the lights were on in the house, and the scope and manner of entry was
reasonable. Case cited: United States v. Snipe (9th Cir. 2008) 515 F.3d 947. (8:46)

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June 2008 Edition - Case Law Today

Miranda: Reinitiation By Suspect
with Daniel McNerney, Superior Court Judge, Orange County, CA
After a suspect has invoked Miranda, he may reinitiate a dialogue with police
by words or conduct indicating a desire on his part to open in a discussion
related directly or indirectly to the investigation. Cases cited: Edwards v.
Arizona (1981) 451 U.S. 477; People v. Mickey (1991) 54 C3d 612; Oregon
v. Bradshaw (1983) 462 U.S. 1039; Wyrick v. Fields (1982) 459 U.S. 42;
People v. Bradford (1997) 15 C4th 1229; People v. Stephens (1990) 218 CA
3d 575; Patterson v. Illinois (1988) 487 U.S. 285; U.S. v. Jennings (2008)
DAR 1934. (7:08)

Belated Chimel Search Incident To Arrest
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Officers may conduct a search of the area immediately within the grabbing
area of a suspect incident to the suspect’s arrest. However, once the suspect
has been taken from the scene and immobilized, officers may not return to
the area of the arrest a few minutes later and search what had been the
grabbing area unless, at the time the police do the belated search, the
location is not yet controlled. Case/statute cited: People v. Leal (2008) 160
Cal.App.4th 701; People v. Rege (2005) 130 Cal.App.4th 1584; Chimel v.
California (1969) 395 U.S. 752. (6:06)

Vehicle Code §5201
with William W. Bedsworth, Appellate Court Justice, State of California
Leonza Duncan was stopped because he had attached his rear license plate
upside down. After he was convicted of transporting meth, he complained on
appeal that he could not be stopped for violating V.C. §5201 because his
license plate was firmly attached, clearly visible, and completely legible. The
Court of Appeal disagreed. Justice Bedsworth explains what constitutes a
violation of Vehicle Code §5201. Case cited: People v. Duncan (2008)
DJDAR 3208. (5:01)

Unrelated Questioning During Detention
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
In assessing whether questioning unrelated to a traffic stop unconstitutionally
prolonged the stop, the fact the questions added a minute or so to the
minimum time in which the stop could otherwise be completed does not
mean the detention was unduly prolonged. Rather, the test is whether, under
the totality of the circumstances, the questioning was reasonable. Case cited:
United States v. Turvin (9th Cir. 2008) 517 F.3d 1097. (5:59)

“Lawfulness” of The Arrest
with Daniel McNerney, Superior Court Judge, Orange County, CA
Regardless of whether state law designates a particular offense as
“arrestable” or “citable”, if police arrest a suspect on a “citable” offense, the
legality of that arrest will be judged under federal standards of
reasonableness. Cases cited: Virginia v. Moore (2008) DAR 5716; California
v. Greenwood (1988) 486 U.S. 35. (7:23)

Initial Ambiguous Invocation of Miranda Rights
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Although an ambiguous invocation of the right to counsel or silence made
after a suspect has waived his Miranda rights will not be deemed a valid
invocation and police may continue an interrogation without clarifying the
ambiguity, the rule is different when the ambiguous invocation is initially
made in response to the Miranda admonition. Cases cited: United States v.
Rodriguez (9th Cir. 2008) 518 F.3d 1072; Davis v. United States (1994) 512
U.S. 452. (10:22)

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July 2008 Edition - Case Law Today

Consent Search: Co-Tenants
with Daniel McNerney, Superior Court Judge, Orange County, CA
If one co-tenant refuses to give consent to a search of the premises, police
may not rely on the consent of a second co-tenant to justify the search.
Cases cited: Georgia v. Randolph (2006) 547 U.S. 103; U.S. v. Murphy
(2008) DAR 2591. (8:32)

"Public Place" for PC §647(f) Purposes
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A woodshed 10 to 15 feet away from the side of a residence is not a “public
place” for purposes of Penal Code section 647(f), which prohibits persons
from being found in a public place while so intoxicated they are unable to
care for their own or others' safety. Also, the statute is not violated if the
person is asked or commanded by police to come from a private place onto a
public place. Case/statute cited: In re R.K. (2008) 160 Cal.App.4th 1615;
Pen. Code § 647(f). (5:41)

"I Plead the Fifth" is a Miranda Invocation
with William W. Bedsworth, Appellate Court Justice, State of California
Justice Bedsworth has previously explained that a vague or unclear
statement that may be an invocation of Miranda may be clarified by the
officer. So if a suspect says something unclear that may be a Miranda refusal
to talk, the officer may ask questions designed to see if that is really the
suspect’s intent. But this cannot be done if the suspect clearly invokes his
Miranda rights; the Ninth Circuit held that “I plead the Fifth,” is plenty clear
enough to preclude any further questioning. There is nothing to “clarify”
when the suspect is that clear. Questioning must stop. Case cited: Anderson
v. Terhune (516 F3d 781). (4:51)

4-5 Hour Detention Not Unduly Prolonged
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A defendant who was stopped at 5:30 in the morning driving his motorcycle
in the dark toward a treacherous dirt road leading to a remote marijuana
grow was not detained for an unduly prolonged period where the deputies
had to take four to five hours to drive out and back to the grow and search
the grow for evidence linking the defendant to the grow. Case cited: People v.
Williams (2007) 156 Cal.App.4th 949. (11:47)

Speedy Trial: Police Efforts to Bring Defendant to Trial
with Daniel McNerney, Superior Court Judge, Orange County, CA
Upon obtaining an indictment or information, law enforcement must make a
reasonable effort to pursue, contact, and bring the defendant to trial. Case
cited: U.S. v. Mendoza (2008) DAR 3087. (8:59)

Weighted Workout Gloves Not PC §12020 "Sandbag"
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A workout glove weighted with sand is not the kind of instrument or weapon
commonly known “sandclub or sandbag” for purposes of the statute
prohibiting mere possession of certain weapons. Case/statute cited: People v.
Mayberry (2008) 160 Cal.App.4th 165; Pen. Code § 12020(a). (4:58)

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August 2008 Edition - Case Law Today

Is It a Glock or a Taser?
with William W. Bedsworth, Appellate Court Justice, State of California
In two reported cases in the last two years, police officers reported intending to tase
a suspect and accidentally drawing his sidearm and shooting him instead. Justice
Bedsworth discusses these cautionary tales and the law applied to them. Cases cited:
Henry v. Purnell (4th Cir. 2007) 501 F3d 374; Torres v. City of Madera (9th Cir. 2008)
2008 Daily Journal 6503 (May 6, 2008). (7:10)

"Reasonable Suspicion" Based Emergency Aid Searches
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Even though an entry into a home under the emergency aid exception requires a
“reasonable belief” (i.e., probable cause) that someone inside is seriously injured or
imminently threatened, officers may conduct a search of a home that is less
intrusive than the physical entry of the home (i.e., peek through a private window)
where is there only “reasonable suspicion” to believe someone inside might be
seriously injured or imminently threatened with such injury. Cases cited: People v.
Gemmill (2008) 162 Cal.App.4th 958; Brigham City v. Stuart (2006) 547 U.S. 398.
(10:14)

Interrogation: Use of Deception
with Daniel McNerney, Superior Court Judge, Orange County, CA
Use of deception by giving a suspect false information during interrogation will not
render the statements involuntary, unless the deception is of such a nature as to
produce a false confession. Cases cited: People v. Watkins (1970) 6 CA3 119;
People v. Parrison (1982) 137 CA3 529; People v. Musselwhite (1998) 17 CA4
1216; People v. Richardson (2008) DAR 7490; People v. Thompson (1990) 50 C3d
134. (8:23)

Medical Marijuana Limits Invalidated
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
The limits placed by the Legislature on the amount of medical marijuana that can be
possessed under the Medical Marijuana Program are invalid. The only valid
limitation is that authorized by the Compassionate Use Act (Proposition 215), which
simply requires that the amount of marijuana possessed be “reasonably related” to
the medical condition of the person authorized to possess the marijuana. Explains
the rationale behind the appellate decision invalidating the limits and makes some
suggestions about how to proceed in light of that decision. Case/Statutes cited:
People v. Kelly (2007) 163 Cal.App.4th 124; H&S Code, §§ 11357, 11358. (12:40)

Miranda Waivers and Juveniles
with William W. Bedsworth, Appellate Court Justice, State of California
Welfare and Institutions Code §627(b) requires that a minor be advised of the right
to make two phone calls (one to an attorney, one to a parent or responsible adult)
immediately upon being brought to a police station and within an hour after being
taken into custody. Lessie contended the police failed to advise him of that right
and did not allow him to call his father, even when he asked to. He contended that
this violated his statute and nullified his Miranda waiver, thus invalidating his
confession to murder. Justice Bedsworth describes the rules applying to
interrogation of a minor. Case cited: People v. Lessie (2008) DJDAR 5000 (April 9,
2008). (8:03)

Peeking Over Fence Isn't Necessarily a Search
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Discusses a case holding, among other things, that an officer did not violate any
reasonable expectation of privacy by looking over a six-foot fence flush with the
front of a house while standing on a concrete pathway leading from the front door
to a gate in the fence, even though the officer needed to stand on his tiptoes to see
over the fence and used a flashlight to aid his vision. Case cited: People v. Chavez
(2008) 161 Cal.App.4th 1493. (13:13)

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September 2008 Edition - Case Law Today

Vehicle Stops: Ordering Passengers In Or Out
with Daniel McNerney, Superior Court Judge, Orange County, CA
For officer safety purposes, police may order a passenger to either remain
seated in a stopped vehicle, or order the passenger to exit and stand or site
nearby where he can be seen as the officer completes his/her investigation.
Cases cited: People v. Vibanco (2007) 151 CA4 1; Maryland v. Wilson
(1997) 519 U.S. 408; People v. Castellon (1999) 76 CA4 1369. (6:16)

Frisks of Occupants During Narcotics Searches
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
An officer conducting a probation search of a home based on evidence of
narcotics trafficking occurring in the home may not, as a matter of course,
pat-search an occupant sitting on the steps of the home. Rather, there must
be individualized suspicion that the particular occupant is armed and
dangerous. Cases cited: People v. Sandoval (2008) 163 Cal.App.4th 205;
People v. Thurman (1989) 209 Cal.App.3d 817. (11:18)

PC §4574(a): Weapons in the Jail
with William W. Bedsworth, Appellate Court Justice, State of California
Barbara Jean Ross was arrested for assault with a knife and booked into the
Santa Barbara jail. In going through the booking process, she was found to
have a knife in her underwear. She was charged with a second felony:
bringing a deadly weapon into the jail in violation of Penal Code §4574(a).
Justice Bedsworth describes her amazing defense to this charge and explains
why it failed. Case cited: People v. Ross (2008) DJDAR 6850 (May 14,
2008). (4:41)

“Stickers” As Graffiti & Knives Altered to be Switchblades
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Adhesive stickers with graffiti-style lettering and gang initials qualify as a
“marking substance” for purpose of the statute prohibiting possession of a
marking substance with the intent to commit vandalism or graffiti (Penal
Code § 594.2(a)(2). A folding knife with a locking blade that has been
altered or broken so that the blade opens with a flick of the wrist qualifies as
a “switchblade” for purposes of the statute prohibiting the possession of
switchblade knives (Penal Code § 653k). Case/Statutes cited: In re Angel R.
(2008) 163 Cal.App.4th 905; Pen. Code §§ 594.2 and 653k. (8:37)

Computers: Document Repositories
with Daniel McNerney, Superior Court Judge, Orange County, CA
In the new millennium, computers are considered to be document
repositories not unlike desks or file cabinets, and are subject to search in the
same manner. Case cited: U.S. v. Giberson (2008) DAR 7875. (8:51)

Delayed Search of Cell Phone Seized Upon Arrest
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Even though a substantial period of time has elapsed after an arrest, items
“immediately associated with” the person of an arrestee that are seized
incident to that arrest may still be searched. Discusses a case upholding the
conduct of an officer who accessed a cell phone taken from an arrestee 90
minutes after the formal arrest. Other issues involving searches of cell
phones are also explored. Case cited: People v. Diaz 2008 WL 2908704.
(12:14)

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October 2008 Edition - Case Law Today

Misdemeanor Cruelty to Children: PC §273a(b)
with William W. Bedsworth, Appellate Court Justice, State of California
Joe Reyes Perez was convicted of several charges including cruelty to a child
[Penal Code §273a(b)]. The theory of this charge was that he had been cruel
to the child by endangering its safety by keeping heroin and syringes in the
house where the child could get them. He appealed the conviction on the
basis that he had not had “care or custody of the child” as required by the
statute. Justice Bedsworth explains what is required for a 273a(b) conviction
and why Reyes did have “care or custody” of the child as contemplated by
the statute. Cases cited: People v. Perez (2008) DJDAR 11199 (July 23,
2008); People v. Malfavon (2002) 102 Cal. App. 4th 735. (7:18)

Search of a Purse Under Male Parolee's Search Clause
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Officers were not justified in searching a purse found at the foot of a female
passenger in a car belonging to a male parolee even though the female
passenger did not take the purse with her when officers ordered her out of
the car before the search took place. Case cited: People v. Baker (2008) 164
Cal.App.4th 1152. (5:33)

Border Searches: Routine vs. Non-Routine
with Daniel McNerney, Superior Court Judge, Orange County, CA
Although “routine” border searches require no justification, “non-routine”
searches, which are particularly intrusive, must be supported by reasonable
suspicion. Case cited: People v. Laborde (2008) 163 CA4 870. (9:20)

Private Citizen Search
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
In order for a private citizen who conducts a search to be deemed to be
acting as a police agent, it must be shown the police had more than mere
knowledge and passively acquiesced to the search– there must be
participation in, or active encouragement of, the search. Also, if a private
citizen conducts a search and then provides police a closed container (such as
a compact disc) seized during that search, police may only conduct a
warrantless search of that container if its contents had already been revealed
to the private citizen or the police are “substantially certain” of its contents
prior to opening it. Case cited: People v. Wilkinson (2008) 163 Cal.App.4th
1554. (18:56)

Interviewing Witnesses at the Station
with William W. Bedsworth, Appellate Court Justice, State of California
Police arriving at a murder scene talk to all the neighbors. Neighbors who
live next door seem particularly helpful and are asked to come to the police
station. While there, one is asked if he minds if the police look at his shoes.
He gives them his shoes, they match the bloody footprints found in the
victim’s home, one thing leads to another and the neighbor is convicted of
two murders. The question: Was he detained when he was taken to the
police department as a witness? Justice Bedsworth explains why he was not
and how to conduct witness interviews at the station without detaining them.
Case cited: People v. Zamudio (2008) DJDAR 5556 (April 22, 2008). (8:48)

All Grand Theft Requires Property Taken Has Value
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Grand theft from the person requires that the property taken from the victim
have some intrinsic value. However, even a forged check has some intrinsic
value based on the value of the paper on which it is printed. Case/statute
cited: People v. Cuellar (2008) 81 Cal.Rptr.3d 252; Pen. Code § 487(c).
(3:03)

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November 2008 Edition - Case Law Today

Pre-Filing Delays: Prejudice
with Daniel McNerney, Superior Court Judge, Orange County, CA
When a defendant demonstrates prejudice resulting in a delay between the
crime and the filing of criminal charges, the court will balance that prejudice
against the government’s justification for the delay. Case cited: People v.
Nelson (2008) 43 C4 1242. (8:27)

PC to Believe Parolee Lives at Residence
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
In order to conduct a parole search of a residence, law enforcement officers
must have probable cause to believe the parolee is a resident of the house to
be searched; nothing in the law justifies a warrantless entry into a third
person’s house in order to arrest or search a parolee. The case discussed
provides an example of insufficient probable cause to believe a parolee
resides inside a home entered by law enforcement. Case cited: Cuevas v.
DeRoco (9th Cir. 2008) 531 F.3d 726. (16:06)

Freedom of Speech and PC §§422 and 148.1
with William W. Bedsworth, Appellate Court Justice, State of California
Several Grass Valley police officers and the city that employed them were
sued in federal court for violating Matt Fogel’s civil rights. Fogel’s crazily
painted VW van included messages that said “W.O.M.D. on Board” and “Pull
Me Over Please: I Dare Ya.” The GVPD arrested him for terrorist threats (PC
§422) and falsely reporting a bomb (PC §148.1). The DA refused to file, of
course, and Fogel sued. He lost, but the next police department might not be
that lucky. Justice Bedsworth explains why this case should serve as a
warning to every department. Case cited: Fogel v. Collins (2008) DJDAR
9852 (6/30/08). (9:10)

Switchblades as Weapons Under Penal Code §12020
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A switchblade knife as defined in Penal Code section 653k (a misdemeanor)
can also be a “dirk or dagger” as defined in section Penal Code section
12020 (a felony wobbler), even if it is carried concealed in its closed
position. Case/Statutes cited: People v. Plumlee 2008 DJDAR 14307; Pen.
Code §§ 653k and 12020(a)(4). (6:01)

Traffic Stops: Lane Change Signal
with Daniel McNerney, Superior Court Judge, Orange County, CA
VC §22107 requires a driver to signal for any lane change when there are
other vehicles in the area who could be affected by the lane change. Case
cited: People v. Logsdon (2008) 164 CA4 741. (7:30)

Pregnancy and Abortion as "Great Bodily Injury"
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A suspect who causes a female to get pregnant as a result of an unlawful
sexual act (forcible or not) may, in certain circumstances, be found to have
inflicted great bodily injury for purposes of imposing an enhanced sentence
under Penal Code section 12022.7. Whether the pregnancy results in an
abortion is relevant to whether the pregnancy constitutes great bodily injury
but the fact the victim gets an abortion does not mean the suspect personally
inflicted the abortion. Case/statute cited: People v. Cross (2008) 45 Cal.4th
58; Pen. Code § 12022.7. (9:02)

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December 2008 Edition - Case Law Today

Bicycle Footrest As "Metal Knuckles"
with William W. Bedsworth, Appellate Court Justice, State of California
David V. was stopped while riding his bike and found to have a bicycle
footrest in his back pocket. There was no way to attach the footrest to the
bike and officers testified footrests like this one were commonly used as
weapons. Justice Bedsworth explains what is required to show a violation of
Penal Code §12020 based on devices like this one, which have legitimate
uses in addition to their weapon value. Case cited: David V. (2008) 166 CA
4th 801. (7:22)

Latest on the Medical Marijuana Defense
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A defendant may raise a medical marijuana defense even though the
recommendation from a doctor to use marijuana is not recent and does not
specify a particular amount. Also, to raise the defense of being a “primary
caregiver” under the Prop 215 (the Compassionate Use Act) the defendant
must do more than just supply marijuana. The Attorney General’s guidelines
on medical marijuana are located at: http://ag.ca.gov/cms_attachments/press/
pdfs/n1601_medicalmarijuanaguidelines.pdf. Cases/Statutes cited: People v.
Windus (2008) 165 Cal.App.4th 634; Health & Saf. Code § 11359. (13:02)

Evidence: Chain of Custody
with Daniel McNerney, Superior Court Judge, Orange County, CA
When the chain of evidence is challenged at trial, police have the burden of
demonstrating to a reasonable certainty that there was no alteration or
substitution. Cases cited: People v. Williams (1997) 16 C4 153; People v.
Jiminez (2008) 165 CA4 75. (8:18)

Drug Possession Arming Clauses
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A suspect may be deemed “personally armed” during the commission of a
drug possession offense based on placing a firearm in close proximity to
drugs so that the firearm is available for offensive or defensive use-- even if
the purpose of placing the firearm next to the drugs was not to facilitate
possession of the drugs. Case/Statutes cited: People v. Pitto (2008) 43
Cal.4th 228; Pen. Code §§ 12022(a)(1)&(c). (9:45)

Searching Arrivees During Warrant Execution
with William W. Bedsworth, Appellate Court Justice, State of California
In this case, Oregon police obtained a warrant to search the rural properties
of Jeffrey Davis. During the search, his brother Richard drove up and was
detained and frisked; his car was searched. Justice Bedsworth explains why
police were allowed to detain and frisk a person who arrived at a premises
being searched pursuant to warrant, but were not allowed to open the
container they found in his pocket. He also explains the rules applying to
searching the car of someone who arrives while a warrant is being executed.
Case cited: United States v. Davis (2008) 10007 (July 1, 2008). (7:25)

The "Present Ability" Element of Assault
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
An assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another. A suspect who points a loaded but
unchambered firearm at an area where he believes a pursuing deputy is
about to appear has committed an assault with a firearm on a peace officer--
even though the suspect never fires the weapon and the deputy never
actually appears at the targeted area. Cases/statute cited: People v. Chance
(2008) 44 Cal.4th 1164; People v. Raviart (2001) 93 Cal.App.4th 258;
People v. Hunter (1925) 71 Cal.App. 315; People v. Yslas (1865) 27 Cal.
630; People v. McMakin (1857) 8 Cal. 547; Pen. Code § 245(c). (10:27)

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