Case Law Today Series

Titles

January 2009 Edition - Case Law Today

School Searches Revisited
with Daniel McNerney, Superior Court Judge, Orange County, CA
The 9th Circuit has reversed its earlier ruling that schools may conduct a strip
search of a student suspected of possessing or furnishing prescription
medicine. Cases cited: Redding v. Safford Unified School District (2007) 504
F3d 828; New Jersey v. TLO (1985) 469 U.S. 325. (8:15)

Searches of Motel Rooms "Abandoned" by Guests
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
If the objective circumstances show that a motel guest no longer has a
reasonable expectation of privacy in his motel room because he has
“abandoned” the room, it is not unlawful for officers to make a warrantless
entry into that room. Discusses a case upholding such an entry even though
the guest left personal items in the room and his car parked in the motel
parking lot. Case cited: People v. Parson (2008) 44 Cal.4th 332. (8:44)

Entry 101: Going Into a Home
with William W. Bedsworth, Appellate Court Justice, State of California
Justice Bedsworth talks about immigration cases about as often as he roots
for the Yankees, so you know he feels this one is valuable. In this segment,
he tells the basic rules of entry into a home and why officers have to know
the rules to keep from getting sued. Cases cited: Lopez-Rodriguez v.
Mukasey (2008) DOS 10408 August 11, 2008; Payton v. New York (1980)
445 U.S. 573. (7:44)

Requests for Counsel at Jail Disciplinary Hearings
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A defendant’s request for the presence of counsel at a jail disciplinary
hearing based on misconduct committed while defendant was in jail does not
constitute an unambiguous request for counsel for all purposes. Thus, so
long as a waiver of Miranda rights is obtained from that defendant before a
later interrogation, a deputy investigating that same misconduct for potential
criminal prosecution is not prohibited from interviewing the defendant after
the disciplinary hearing. Cases cited: People v. Wyatt (2008) 165
Cal.App.4th 1592; Edwards v. Arizona (1981) 451 U.S. 477. (8:44)

Miranda: Re-advisement After Break in Interrogation
with Daniel McNerney, Superior Court Judge, Orange County, CA
Depending on the circumstances, it may not be necessary to re-advise a
suspect of his Miranda rights before resuming interrogation after a break.
Cases cited: People v. Smith (2007) 40 C4 483; People v. Stallworth (2008)
164 CA4 1079. (7:00)

When Handcuffing Converts Detention Into Arrest
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Although handcuffing a suspect during a detention will not necessarily
transform a detention into an arrest, it can do so when there is no evidence
to suggest the suspect detained poses a danger or will flee and there is
nothing to indicate the handcuffing was otherwise necessary to effectuate the
purpose of the stop. Case cited: In re Antonio B. (2008) 166 Cal.App.4th 435. (8:34)

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February 2009 Edition - Case Law Today

False Compartments (H&S Code §11366.8)
with William W. Bedsworth, Appellate Court Justice, State of California
Justice Bedsworth analyzes and explains the requirements for a H&S Code
§11366.8 (false compartment) violation, using the California Supreme
Court’s recent Arias decision as a framework. Case cited: People v. Arias
(2008 DJDAR 16617)(11/7/08). (5:54)

Handcuffing During Detention: Proceed With Caution
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Officers may not handcuff a detainee (even one suspected of involvement in
narcotics) based solely on the fact there is a height differential between the
officer and the detainee where there are less intrusive methods (i.e., a
patsearch) available to the officer to carry out the detention. Case cited:
People v. Stier (2008) 168 Cal.App.4th 21. (12:40)

Search & Seizure: Outstanding Warrant Discovered After Illegal Stop
with Daniel McNerney, Superior Court Judge, Orange County, CA
Even if the initial detention of a suspect is without reasonable suspicion,
discovery that the suspect has an outstanding arrest warrant may
nevertheless justify a search incident to arrest on that warrant. Cases cited:
Brendlin v. California (2007) 127 S. Ct. 2400; People v. Sims (1993) 5 C4
405; People v. Sanders (2003) 31 C4 318. (9:11)

Frisks Based on Flight in Gang Stronghold
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
When an officer observes conduct giving rise to a reasonable suspicion an
individual is involved in criminal activity (such as headlong flight through
traffic) and that activity occurs in an area known for recent, violent gang
crime, these facts together go a long way toward permitting a patsearch of
that individual. Case cited: In re H.M. (2008) 167 Cal.App.4th 136. (6:13)

Unclear Miranda Invocations
with William W. Bedsworth, Appellate Court Justice, State of California
Ricky Sechrest was investigated simultaneously by the Reno P.D. for murder
and the Sparks, Nevada P.D. for grand larceny. He agreed to talk to the
Sparks police, and when they finished, Reno asked to talk to him. He said
he’d like to talk to the Reno police, but he had talked to his attorney and
been told to keep his mouth shut. Was that an invocation of his Miranda
rights? How about when he said, “You ask some questions and if I want to
answer them I will and if I don’t, I won’t.” Was that a waiver? Justice
Bedsworth explains what the proper procedure is under these circumstances.
Case cited: Sechrest v. Ignacio (2008) 549 F3d 789. (6:45)

Vehicle Search Incident to Arrest and More
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Discusses a case holding that a search of a suspect’s vehicle could not be
justified either as a search incident to arrest or inventory search where the
suspect was only detained after he exited the vehicle and began crossing
yards to get to his home (which was two houses away) and the search
occurred “well after” defendant was arrested a block and half away from the
vehicle. Other issues raised in the case are also discussed. Cases/Statutes
cited: United States v. Caseres (9th Cir. 2008) 533 F.3d 1064; Veh. Code §§
22108, 26708. (18:48)

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March 2009 Edition - Case Law Today

Miranda: Simplifying the Advisement of Rights
with Daniel McNerney, Superior Court Judge, Orange County, CA
When a suspect expresses confusion regarding Miranda rights, police may
restate them in simpler terms to help the suspect better understand. Case
cited: People v. Cruz (2008) 44 C4th 636. (7:20)

Prop 215's Term "Primary Caregiver" Defined
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Under the Compassionate Use Act, a person may cultivate or possess
marijuana if he/she has a recommendation or approval from a doctor to use
marijuana and cultivates or possesses marijuana solely for medical use. This
person is considered a “patient.” A suspect who is a “primary caregiver” for
a patient also has a defense against a charge of cultivation or possession of
marijuana but only if that person has assumed responsibility for the housing,
health, or safety of the patient. Defines precisely how a person may qualify
as a "primary caregiver." Case cited: People v. Mentch (2008) 45 Cal.4th
274; Health & Saf. Code § 11362.5. (14:27)

Firearm Crimes and the Second Amendment
with William W. Bedsworth, Appellate Court Justice, State of California
Late last year, the United States Supreme Court decided Heller, holding
unconstitutional a Washington D.C. ordinance prohibiting possession of
firearms. Since then, several California felons have tried to use Heller as a
basis for overturning their convictions for gun felonies. They have failed.
Justice Bedsworth explains why and what effect Heller has on day-to-day law
enforcement. Cases cited: District of Columbia v. Heller (2008); People v.
Yarborough (2008) DJDAR 18467 (concealed weapon); People v. Flores
(2008) DJDAR 18615 (criminal in possession; concealed weapon; loaded
weapon in car). (6:55)

The Exclusionary Rule and Faulty Police Records
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Evidence seized as a result of an unlawful arrest will not be suppressed where
the arrest is based on erroneous information from another agency that the
arrestee had an outstanding warrant and the mistaken information was the
result of isolated police negligence. Cases cited: Herring v. United States
2009 WL 77886; Arizona v. Evans (1995) 514 U.S. 1. (11:01)

Miranda: Interrogation in Suspect's Home
with Daniel McNerney, Superior Court Judge, Orange County, CA
Judge McNerney explains how a recent federal 9th Circuit is critical of officers’
interrogation of a person inside his own home. Case cited: U.S. v. Craighead
(2008) 539 F.3d 1073. (10:51)

Limited Entry Into Home Through Ruse Sometimes OK
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
An officer’s ruse of posing as potential home buyer, unbeknownst to the
realtor, to gain entry into a home for the purpose of corroborating an
informant’s information does not violate the Fourth Amendment so long as
the officer does no more than what any member of the home-buying public
would be invited to do. Case: People v. Lucatero (2008) 166 Cal.App.4th
1110. (8:46)

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April 2009 Edition - Case Law Today

Hard Plastic Knuckles: Illegal?
with William W. Bedsworth, Appellate Court Justice, State of California
Justice Bedsworth responds to a very good question for the Yuba County
Community College District: Does California law, which clearly prohibits the
possession of metal knuckles and clearly prohibits the manufacture or sale of
hard plastic or wooden knuckles, anywhere prohibit the possession of hard
plastic knuckles? The answer may be “no.” Case cited: In re Roosevelt H.
(Call. App. Unpub. Lexis 263)(1/9/2003). (5:28)

Limits on Entry to Seize 5150's Firearms
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
In a recent appellate case, the court held that, notwithstanding the statute
allowing for seizure of a firearm in the possession of a mentally disordered
person (Pen. Code § 8102), an officer cannot enter the residence of the
mentally disordered person (Pen. Code § 5150) to retrieve a firearm
without, or even with a warrant, in the absence of an exception to the
warrant requirement. No such exception allowed entry in the case because
the suspect was detained outside the home, the suspect was going to be held
in custody, and there was nobody inside the home. Note: The California
Supreme Court has taken up this case for review. Case/Statutes cited: People
v. Sweig (2008) 167 Cal.App.4th 274; Pen. Code § 1524; Welf. & Inst. Code
§§ 5150, 8102. (12:41)

Traffic Stops: Passenger Pat-Downs
with Daniel McNerney, Superior Court Judge, Orange County, CA
Because passengers in a lawfully stopped vehicle are “detained," they are
subject to a pat-down upon particularized suspicion that they may be armed
and dangerous. Cases cited: Maryland v. Wilson (1997) 519 U.S. 408;
Arizona v. Johnson (2009) 555 U.S.; Brendlin v. California (2007) 551 U.S.
249. (8:16)

Butane Extraction of Hash Oil Equals Manufacturing
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A suspect who uses butane to extract concentrated cannabis from marijuana
may properly be prosecuted for manufacturing a controlled substance under
Health and Safety Code section 11379.6. Case/Statutes cited: People v.
Bergen (2008) 166 Cal.App.4th 161; Health & Saf. Code §§ 11358,
11379.6. (8:04)

Penal Code §148: Obstructing Justice
with William W. Bedsworth, Appellate Court Justice, State of California
While case law has held that “momentary disobedience” will rarely support
an arrest for obstructing an officer, it is nonetheless, the citizen’s
responsibility to obey lawful and valid police orders. Justice Bedsworth
discusses an Oregon domestic violence case, which rather clearly illustrates
the conduct, which will provide probable cause for a PC §148 arrest, where
the nature of the crime is refusal to cooperate. Case cited: Lassiter v. City of
Bremerton (2009) DJDAR 2813 (2/27/2009). (6:44)

Tent-Like Structure Protected by Fourth Amendment
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A tent or tent-like structure pitched on a legal public campground will be
treated as a residence for purposes of the Fourth Amendment warrant
requirement even if the structure houses a vehicle that officers have
probable cause to search. Case: People v. Hughston (2008) 168 Cal.App.4th
1062. (8:37)

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May 2009 Edition - Case Law Today

Pat-Downs: Baggy Clothing and Marijuana
with Daniel McNerney, Superior Court Judge, Orange County, CA
Although a detainee’s baggy clothing alone will not justify a pat-down, it is
an important factor in establishing reasonable suspicion he is armed and
dangerous. Case cited: People v. Collier (2008) 166 CA4 1374. (8:46)

Dropped 911 Calls and Warrantless Home Entries
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Provides some guidelines for officers in determining whether a warrantless
entry into a home following a 911 hang-up or open line call will be
permissible under an exigent circumstances or community caretaking theory.
As there is no California case directly dealing with the issue, the guidelines
are based on the presenter’s review of published decisions from other
jurisdictions. (10:31)

Penal Code §12303.2: Destructive Devices
with William W. Bedsworth, Appellate Court Justice, State of California
Penal Code §12303.2 prohibits reckless or malicious possession of a
destructive device on a public street or in a public building. Section 12301
defines a destructive device as, essentially, a breakable container holding a
flammable liquid with a flashpoint below 150 degrees Fahrenheit and a wick
(such as a Molotov cocktail). Justice Bedsworth discusses the statute and
explains why the defendant’s arguments failed in the Adams case. Case
cited: (2009) DJDAR 1313 (1/29/09). (5:01)

"Community-Caretaking" Detentions
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
An officer may, in certain circumstances, detain a person or vehicle for
“community caretaking” purposes. However, an officer may not do so based
solely on seeing a sweaty person stumble while walking to a car with an
unsteady gait where the car is being driven by someone else, the person
enters the car as a passenger, and there is no additional evidence the person
is in need of help. Cases cited: People v. Madrid (2008) 168 Cal.App.4th
1050; Cady v. Dombroski (1973) 413 U.S. 433; People v. Ray (1999) 21
Cal.4th 464. (8:47)

Search and Seizure: Consent-Once-Removed
with Daniel McNerney, Superior Court Judge, Orange County, CA
If a suspect consents to an undercover officer’s entry of his residence, that
consent extends to other officers whose presence is not known to the suspect.
Cases cited: Lewis v. U.S. (1966) 385 U.S. 206; U.S. v. Bramble (1996) 103
F. 3d 1475; U.S. v. Jachimko (1994) 88 F. 3d 291; U.S. v. Yoon (2005) 546
U.S. 645; Pearson v. Callahan (2009) DAR 922. (9:33)

The Police Duty to Disclose Exculpatory Evidence
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Officers may be subject to a 42 U.S.C. § 1983 civil suit for failure to inform
the prosecutor of material information exculpating a suspect who they
investigated and who was charged with a crime based on that investigation -
even if the officers do not act in bad faith, the information comes to light
after trial, and the information has been placed in a police file potentially
accessible to the prosecutor. Cases cited: Brady v. Maryland (1963) 373 U.S.
83; Tennison v. City and County of San Francisco (9th Cir. 2008) 548 F.3d
1293. (12:34)

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June 2009 Edition - Case Law Today

Discovery, Discovery, Discovery
with William W. Bedsworth, Appellate Court Justice, State of California
Federal prosecutors obtained a conviction of a United States senator for
corruption in office. It was a historic and impressive accomplishment, which
has now been vacated by the Justice Department. The prosecutors are being
investigated for contempt of court and could likely lose their licenses to
practice even if they avert criminal charges. Justice Bedsworth explains why
this case is significant for all law enforcement officers. Case cited: U.S. v.
Stevens. (7:39)

Boxcutter With Exposed Blade Prohibited at School
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A box cutter with the blade exposed qualifies as a “a razor with an
unguarded blade” for purposes of P.C. Section 626.10, the statute prohibiting
the possession of such an item on school grounds. This holds true even if the
box cutter is in a backpack, although not if the blade of the box cutter is
retracted. Cases/Statute Cited: In re Z.R. (2008) 168 Cal.App.4th 1510; In
re Michael R. (2004) 120 Cal.App.4th 1203; Pen. Code § 626.10. (3:06)

Miranda: Juveniles and Voluntariness
with Daniel McNerney, Superior Court Judge, Orange County, CA
An otherwise lawful custodial interrogation can eventually turn unlawful if it
drags on too long, or if it involves a particularly inexperienced or vulnerable
suspect. Case cited: Doody v. Schriro (2008) 548 F3d 847. (9:47)

Every Element of Miranda Warning Must Be Given
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
All four elements of the Miranda warning must be given in some form in
order for a suspect’s statement to be admissible, regardless of whether there
is circumstantial evidence the suspect understood the right. Thus, where a
suspect was not told his statement could be used against him, the confession
should have been suppressed. Cases cited: People v. Bradford (2008) 169
Cal.App.4th 843. (5:39)

Arrest in the Home: Exigent Circumstances
with William W. Bedsworth, Appellate Court Justice, State of California
Justice Bedsworth discusses the recent case in which an en banc panel of the
9th Circuit Court of Appeals dealt with a barricaded suspect situation. The
Court held that once exigent circumstances existed to enter the suspect’s
home to arrest him (because he was armed and dangerous), the passage of
time during a 12-hour standoff did not eliminate that exigency and require
that they go get a warrant. This may seem self-evident, but it split the courts
every time it was heard and Justice Bedsworth explains why. Case cited:
Fisher v. City of San Jose (2008) DJDAR 2707 (2/26/09). (7:32)

Big Changes Re: Vehicle Searches Incident to Arrest
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Police may search the passenger compartment of a vehicle incident to the
arrest of a recent occupant of the vehicle only if the arrestee is not secured
and within reaching distance of the passenger compartment at the time of
the search or if it is reasonable to believe the vehicle contains evidence of the
offense for which the arrest was made – overruling Belton. Cases cited:
Arizona v. Gant (2009) DJDAR 5611; New York v. Belton (1981) 453 U.S.
454; Chimel v. California (1969) 395 U.S. 752. (12:28)

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July 2009 Edition - Case Law Today

Vehicle Stops: Temporary Operating Permits
with Daniel McNerney, Superior Court Judge, Orange County, CA
Police do not have reasonable suspicion to initiate a traffic stop solely to
verify that the document taped to a vehicle’s window is a valid temporary
operating permit. Cases cited: In re Raymond C. (2006) 145 CA 4 1320;
People v. Saunders (2006) 38 C4 1129; People v. Hernandez (2008) 45 C4
295. (8:11)

Crimes Purge Taint of Unlawful Detentions
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Although an officer’s observations of a suspect’s conduct immediately
following an unlawful detention will ordinarily be suppressed, if the suspect’s
conduct constitutes a crime, then the crime will be deemed an intervening
event that dissipates the taint of the initial illegality and prevents suppression
of the observations. Describes a case applying that principle where officers
detained a suspect based on an invalid city ordinance. Case/statutes cited:
People v. Cox (2008) 168 Cal.App.4th 702; Veh. Code § 21956; Pen. Code
§§ 69, 148, 243(b), & 834. (13:58)

Detention: Anonymous Report
with William W. Bedsworth, Appellate Court Justice, State of California
Police received a phone call reporting a disturbance in a gang area. Along
with descriptions of the men, the caller said one of them might have a
handgun. Police, who had responded to a daytime shooting at the location
earlier in the week and confiscated two handguns, responded and reportedly
ordered Richard G., whose clothing matched the description, to stop. When he
failed to do so, he and an officer scuffled. Justice Bedsworth explains why
this detention was legal and how it differs from Florida v. J.L., which
generally disapproved of detention based on anonymous tips of handgun
possession. Cases cited: In re Richard G. (2009) DJDAR 6883 (May 14,
2009); Florida v. J.L. (200) 529 U.S. 266. (7:34)

Suspected Drug Use Alone Doesn't Allow Frisk
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Reasonable suspicion a person is under the influence of an illegal drug does
not, by itself, permit an officer to frisk the suspect in the absence of any
evidence the suspect is armed. Case cited: Ramirez v. City of Buena Park
(9th Cir. 2009) 560 F.3d 1012. (6:19)

Miranda: Invocation of Right to Silence
with Daniel McNerney, Superior Court Judge, Orange County, CA
In Deweaver v. Runnels, the Court finds that defendant’s comment: “I want to
go back to the jail” is not a invocation of his right to silence. Cases cited:
Deweaver v. Runnels (2009) DAR 2791; Davis v. U.S. (1994) 512 U.S. 457;
People v. Wash (1993) 6 C41; People v. Husslewhite (1998) 17 C4 1216;
Doody v. Schriro (2008) 548 F3 847. (8:48)

Multiple Parole Searches Do Not Equal Harassment
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Although a parolee can challenge a parole search conducted for arbitrary or
harassing purposes, just because an officer conducted two searches of a
parolee within 24 hours and had had numerous contacts with the parolee in
the past, this does not compel the conclusion the searches were done to
harass the parolee. Case cited: People v. Sardinas (2009) 170 Cal.App.4th
488. (7:52)

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August 2009 Edition - Case Law Today

Keeping Your Surveillance Location Secret
with William W. Bedsworth, Appellate Court Justice, State of California
Evidence Code §§1040-1042 provides a privilege to police to withhold from
the defense certain information that would be “against the public interest
because there is a necessity for preserving its confidentiality.” Justice
Bedsworth discusses a case in which police were allowed to refuse to divulge
the location of their surveillance. This is the exception to the rule, but can be
done under the right circumstances, and it’s important that you know how to
create those circumstances. Case cited: People v. Lewis (2009) 172 Cal App 4th
1426. (7:28)

Post-Arraignment Contacts with Suspects - Jackson Overruled
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Regardless of whether a suspect has requested or been appointed counsel at
an arraignment or similar hearing, police may contact and interview a suspect
so long as the interview follows a voluntary, knowing, and intelligent waiver
by the suspect of his right to counsel and the suspect has not earlier invoked
his right to counsel during a prior custodial interrogation. The U.S. Supreme
Court discarded its earlier holding in Michigan v. Jackson that police are
prohibited from even seeking a waiver of the right to counsel from a suspect
once he or she requested counsel at an arraignment or similar proceeding.
Cases cited: Montejo v. Louisiana (2009) 129 S.Ct. 2079; Michigan v. Jackson
(1986) 475 U.S. 625; Edwards v. Arizona (1981) 451 U.S. 477. (11:23)

Search Warrants: Statement of Probable Cause
with Daniel McNerney, Superior Court Judge, Orange County, CA
The case of Johnson v. Walton discusses the importance of including all
important information into a search warrant affidavit, including the affiant’s
training and experience, and the reasonable inferences which support probably
cause. Cases cited: Johnson v. Walton (2009) DAR 3863; U.S. v. Leon (1984)
468 U.S. 897. (11:30)

"Custody" for Miranda Purposes: In-Home Interrogation
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
The Ninth Circuit held a suspect was in custody for Miranda purposes, even
though the suspect was interviewed in his home for just a couple of minutes,
where: (1) police were both inside and outside the suspect’s home serving a
warrant when the suspect arrived; (2) the suspect was commanded to enter his
house to speak with a detective; (3) the suspect was immediately confronted
about child pornography found in his house; and (4) the suspect was never
told he was not under arrest. Thus the suspect’s statement had to be
suppressed because it was not preceded by Miranda warnings but a subsequent
Mirandized statement was still admissible since the first statement was not
coerced or the result of improper police tactics. Case cited: United States v.
Brobst (2009) 558 F.3d 982. (11:02)

Miranda: The Benefits of Recording
with William W. Bedsworth, Appellate Court Justice, State of California
This segment focuses on the benefits of recording a suspect interview, including
preservation of evidence that the statement was voluntary. Case cited: People
v. Dykes (2009) 46 C4 731. (8:23)

Suspect's Lies Save Otherwise Unlawful Probation Search
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A suspect who lies about his identity so that an officer is misled about whether
the suspect has a probation search clause will be stopped from challenging a
search by that officer on the ground the officer was unaware of the search
clause before conducting the search. Cases cited: People v. Watkins (2009)
170 Cal.App.4th 1403; Myers v. Superior Court (2004) 124 Cal.App.4th 1247.
(10:32)

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September 2009 Edition - Case Law Today

What Is a Reasonable Police Officer?
with William W. Bedsworth, Appellate Court Justice, State of California
Peace officers are confronted every day with decisions that require them to
exercise their judgment in the field –often on a moment’s notice. Those
decisions are then received for “reasonableness.” Whether the issue is
detention, search, arrest, civil liability, or a dozen other things, the courts
always talk about what a “reasonable” police officer “would have done –
approving reasonable” actions and disapproving “unreasonable” ones.
Justice Bedsworth talks about the standard. (8:10)

When Workplace Interrogations Are Deemed "Custody"
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
The Ninth Circuit held a suspect was not in custody for Miranda purposes,
even though he was interviewed for 2½ hours and he was involuntarily
brought to the interview, where the suspect was interviewed in a conference
room at his workplace by plainclothes officers whose weapons were not
visible, the suspect was told he was not under arrest and would not be
arrested, the interview was largely non-confrontational, and the suspect
willingly participated in the interview. Case cited: United States v. Bassignani
(9th Cir. 2009) 560 F.3d 989. (14:24)

Massiah Violations and Impeachments
with Daniel McNerney, Superior Court Judge, Orange County, CA
Statements taken from a suspect in violation of Massiah may nevertheless be
used for impeachment. Cases cited: Massiah v. U.S. (1964) 377 U.S. 2d;
Kansas v. Ventris (2009) 556 U.S. (8:43)

Use of Fake Polygraph During Interview - Coercive?
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Some, but not all, police deception will render a statement involuntary. This
video discusses a case finding a statement voluntary where police used a
fake polygraph test and test results to induce a suspect to give a statement.
Case cited: People v. Mays (2009) 174 Cal.App.4th 156. (12:11)

Emergency Entry of a Home
with William W. Bedsworth, Appellate Court Justice, State of California
In Hopkins police received a report from a citizen that she had been involved
in a minor traffic accident and that the other driver had fled to his home and
gone inside. She said he had the odor of alcohol on his breath. Police were
unable to get a response at the house and finally entered –without warrant
or consent. They tried to claim emergency on three different bases. Justice
Bedsworth explains why this argument failed and the federal civil rights
action against them continued. Case cited: Hopkins v. Bonvicino (2009)
DJDAR 10593 (July 20, 2009). (8:07)

Consent to Search Where Multiple Occupants Reside
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
If police obtain valid consent to search from one occupant of a house, they
are not obligated to also seek the consent of a co-occupant who was arrested
outside the house shortly before consent was obtained, so long as the cooccupant
was not arrested in order to avoid his potential objection to the
search. Cases cited: United States v. Brown (9th Cir. 2009) 563 F.3d 410;
Georgia v. Randolph (2006) 547 U.S. 103; United States v. Murphy (9th Cir.
2008) 516 F.3d 1117. (8:50)

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October 2009 Edition - Case Law Today

School Searches: Degree of Intrusion
with Daniel McNerney, Superior Court Judge, Orange County, CA
In evaluating legality of a school search, courts will balance the
dangerousness of the conduct under investigation against the degree of
intrusion into the student’s privacy. (7:37)

Public "Reach-In" Searches - Permissible?
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Can an officer open a parolee’s pants and reach inside his underwear to
check for contraband in a public location? Discusses a case upholding such a
search and highlights what factors courts will consider in assessing whether
such a search will be deemed a reasonable “reach-in” search or an
unreasonable public strip search. The officer who conducted the search is
interviewed. Case cited: People v. Smith (2009) 172 Cal.App.4th 1354.
(15:21)

Search of a Hotel Room
with William W. Bedsworth, Appellate Court Justice, State of California
The occupant of a hotel room has a reasonable expectation of privacy in that
room unless he obtained the room fraudulently. If he did not obtain use of
the room fraudulently, police cannot enter the room, even with probable
cause, unless they have a warrant, consent, an emergency-- or the occupant
has been lawfully evicted. Justice Bedsworth discusses the Young case where
evidence was suppressed because the defendant, while clearly a crook, had
paid for the room and had not been evicted by the hotel. Case cited:
United States v. Young (2009) U.S. App. LEXIS 15500. (8:25)

Delaying Packages Past Guaranteed Delivery Time
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
An addressee has no Fourth Amendment possessory interest in a package
that has a guaranteed delivery time until such delivery time has passed.
Before then, law enforcement may detain such a package for inspection
purposes without violating the Fourth Amendment. Once the guaranteed
delivery time passes, however, law enforcement must have a reasonable and
articulable suspicion the package contains contraband or evidence of illegal
activity to further detain it. Case cited: United States v. Jefferson (9th Cir.
2009) 566 F.3d 928. (5:54)

Computer Searches: Put It In Your Warrant!
with Daniel McNerney, Superior Court Judge, Orange County, CA
In the Payton case, the Federal 9th Circuit Court of Appeals holds that in order
to search a computer found at the scene of the service of a search warrant,
the warrant must specifically authorize a computer search. Cases cited: U.S.
v. Payton (2009) DAR 10800; US v. Giberson (2008) 527 F. 3d 882. (8:39)

"Rescue Doctrine" Exception to Miranda Rules
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
The “rescue doctrine” permits officers to noncoercively question a defendant
in custody who has asserted his right to counsel “under circumstances of
extreme emergency where the possibility of saving the life of a missing
victim exists– even if the victim has been missing for a long period of time.
The doctrine was highlighted in the infamous Polly Klass kidnapping-murder
case. Cases cited: Edwards v. Arizona (1981) 451 U.S. 477; People v. Davis
(2009) 46 Cal.4th 539. (15:47)

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November 2009 Edition - Case Law Today

No Questions, No Miranda
with William W. Bedsworth, Appellate Court Justice, State of California
The Miranda decision requires that all suspects in a custodial situation (arrest
or its equivalent) must be advised of their rights before interrogation. The
general rule is that it takes custody plus interrogation or the threat of
interrogation to trigger Miranda requirements. Justice Bedsworth discusses
what happens when a suspect tries to assert his Miranda rights before anyone
seeks to question him. Case cited: People v. Buskirk (2009) 175 CA 4th
1436. (6:41)

What Is "False" Material Under PC 134?
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Penal Code section 134 makes it unlawful to prepare any “false” matter or
thing, with the intent to produce it, or allow it to be produced for any
fraudulent or deceitful purpose, as genuine or true, in a trial or other
proceeding. If a suspect takes a photo of one intersection but offers it into
evidence in a traffic citation trial as a photo of a different intersection, the
photo will be deemed “false. Case/statute cited: People v. Bamberg (2009)
175 Cal.App.4th 618; Pen. Code § 134. (12:51)

Exigent Circumstances: Missing Persons
with Daniel McNerney, Superior Court Judge, Orange County, CA
During a missing persons investigation, probable cause to believe they may
be found at a particular location and that immediate action must be taken to
protect them may provide exigent circumstances to enter without a warrant.
Cased cited: People v. Wharton (1991) 53 C3d 522; People v. Lucero (1988)
44 C3d 1006; People v. Rogers (2009) 46 C4th 1136. (7:43).

Can Entry Into a Carport Be a Residential Burglary?
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Burglary of an inhabited dwelling is a first-degree residential burglary. Entry
into an open carport with private parking stalls that serves as the bottom
floor of an apartment building and is accessed via communal stairways
adjacent to the carport qualifies as a residential burglary. Case/statute cited:
People v. Thorn 2009 WL 2344585; Pen. Code § 459-1st. (10:09)

Search on a Military Base
with William W. Bedsworth, Appellate Court Justice, State of Californi
The Uniform Code of Military Justice, including the Military Rules of
Evidence, includes provisions for a search conducted pursuant to the
authorization of the base commanding officer. In Jasmin, the defendant
challenged the admissibility of evidence obtained in a search authorized by
the base commander, insisting a warrant was necessary. Justice Bedsworth
explains why he lost and explains a very important point of law– especially
for departments with military installation in or near their jurisdictions. Case
cited: People v. Jasmin (2008) 167 Cal. App. 4th 98. (6:44)

Refusal to Consent Doesn't Justify Frisk
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
An officer does not have reasonable suspicion to frisk a suspect based solely
on the fact that the suspect refused to consent to a search– even where the
manner of the refusal is unusual. Case cited: In re H.H. (2009) 174
Cal.App.4th 653. (6:35)

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December 2009 Edition - Case Law Today

Interrogations: Putting the Constitution Back in the Tube
with Daniel McNerney, Superior Court Judge, Orange County, CA
There are no “do-overs” for interrogating. Once constitutional violations have
occurred, police may not go back and correct the violations with new
advisements and waivers. Case cited: Moore v. Czerniak (2009) DAR 11081.
(8:11)

Frisks for Burglary Tools and More
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
It is reasonable to conduct a pat search of a person who has been detained
on suspicion of auto burglary or auto theft because it is reasonable such a
person might be armed with weapons or tools such as knives and
screwdrivers that could be used as weapons. Officers may conduct a search of
the passenger compartment of a vehicle incident to the arrest of a suspect for
being an ex-felon in possession of a firearm based on reasonable suspicion
evidence of that crime will be found in the vehicle. Cases cited: People v.
Osborne (2009) 175 Cal.App.4th 1052; Arizona v. Gant (2009) 129 S.Ct.
1710. (16:08)

Checking Mail at Private Mail Facilities
with William W. Bedsworth, Appellate Court Justice, State of California
In this case, police found out Reyes (a kidnapping suspect) collected his mail
at a private mail facility. They went there and asked the manager if Reyes
had a box there. The manager responded by pulling three letters out of a
box and showing them to the police. One was a phone bill from AT&T. Using
that information, police obtained a warrant for Reyes’ phone records, which
connected him to the kidnapping and led to his conviction and life sentence.
Justice Bedsworth explains why Reyes had no reasonable expectation of
privacy in the outside of his letters and why the mail facility manager could
show them to police. Case cited: People vs. Reyes (2009 DJDAR 15589).
(7:08).

Detentions of Occupants During Probation/Parole Searches
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Just as officers executing a search warrant have the authority to detain the
occupants of the premises while a proper search is conducted regardless of
whether or not the occupants appear dangerous, so do officers conducting
probation and parole searches. Cases cited: Sanchez v. Canales (9th Cir.
2009) 574 F.3d 1169; Muehler v. Mena (2005) 544 U.S. 93. (4:43)

Search Warrants: Staleness
with Daniel McNerney, Superior Court Judge, Orange County, CA
Affidavits containing information more than four weeks old will be unlikely
to establish probable cause to issue a search warrant. Case cited: People v.
Hirata (2009) 175 CA4 1499. (7:16)

Stun Gun Assault Doesn't Require Victim Be Immobilized
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
To prove someone violated the statute prohibiting assault with a stun gun
(Pen. Code, § 244.5(b)), it is not necessary to show the victim was
temporarily immobilized as long as it can be shown the weapon used was
capable of temporarily immobilizing a person by the infliction of an electrical
charge. Cases/statutes cited: In re Brandon O. (2009) 174 Cal.App.4th 637;
Pen. Code § 244.5(b). (9:44)

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