Case Law Today Series

Titles

January 2011 Edition - Case Law Today

Probable Cause to Arrest
with William W. Bedsworth, Appellate Court Justice, State of California
Casual conversation between an officer and a suspect does not constitute
“custodial interrogation.” Cases cited: Rhode Island v. Innis (1980) 446 U.S.
291; Oregon v. Bradshaw (1983) 462 U.S. 1039; Mickey v. Ayers (2010) DAR
8377. (6:43)

Parental Consent to Search Over Child's Objection
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A person who raises his hands in the air in response to an officer’s request to
search his person, but who does not orally agree to the search, can still be
found to have voluntarily consented to the search. Case cited: United States v.
Vongxay (9th Cir. 2010) 594 F.3d 1111. (12:47)

Extended Border Searches: Do-Overs?
with Daniel McNerney, Superior Court Judge, Orange County, CA
An overview of consent search cases including the following concepts and cases:
OK to request consent to search, even if no suspicion of wrongdoing (Florida v.
Bostick (1991) 501 US 429); OK to get consent, even if suspect detained,
cuffed and caged (People v. Llamas (1991) 235 Cal. App. 3d 441); OK to get
consent, even if suspect in custody (US v. Watson (1976) 423 US 411); OK to
get consent, even if suspect is not present where search is to occur (US v.
George (9 th Cir. 1993) 987 F. 2d 1428); no need to tell the suspect he has the
right to refuse consent (Ohio v. Robinette (1996) 519 US 33); no need to give
Miranda warnings before requesting consent (People v. James (1977) 19 Cal.
3d 99); OK to get consent, even if suspect has already invoked Miranda
(People v. Ruster (1976) 16 Cal. 3d 690). (12:31)

DNA Testing of Discarded Cigarette Not a Search
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A motel room rented by a probationer or parolee can be a “residence” for
purposes of executing a search clause allowing searches of the residence of the
probationer or parolee. There was probable cause to believe a motel room was
a probationer’s residence based on information from a reliable informant the
probationer was staying at a particular motel room and verification of that
information by a motel clerk. Case cited: United States v. Franklin (9th Cir.
2010) 603 F.3d 652. (6:57)

Consent Searches: Q&A x7
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Office
Justice Bedsworth discusses the use of old information to obtain a search
warrant– explaining when your information is too old and needs to be
refreshed. He also gives some valuable pointers on when to seek warrants and
how they can make your probable cause look better. Case cited: People v.
Jones (2010) DJDAR 14085. (4:50)

Some Issues Involving Line-ups
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A post-impound inventory search that is statutorily-authorized because the
driver has no license is still constitutionally invalid where the inventory search
is expressly conducted for the purposes of finding narcotics and not to carry
out any community caretaking function, i.e., where no evidence is presented
the vehicle is at an enhanced risk of vandalism, is impeding traffic or
pedestrians, or could not be driven away by someone other than the arrestee.
Case cited: People v. Torres (2010) 188 Cal.App.4th 775. (6:54)

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February 2011 Edition - Case Law Today

Tasers: Dart Mode
with William W. Bedsworth, Appellate Court Justice, State of California
Use of tasers by police offi cers is getting a lot of attention from federal courts
confronted with federal civil rights actions alleging excessive force by police offi -
cers. Justice Bedsworth addresses the 9th Circuit decision having to do with using
tasers in "dart mode." Case cited: Bryan v. MacPherson (2010) DJDAR 17910
(December 1, 2010). (10:09)

Inconsistency Between DMV Records and Reg Tabs Justifi es
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Although the fact a car is displaying an apparently valid temporary permit does
not usually provide reasonable suspicion by itself to justify a stop, a stop is
proper if police became aware of other information that suggests the registration
is not valid. For example, if a DMV records check reveals the car has not
been registered and is not in the process of being registered despite the apparently
valid permit, a stop would be justifi ed. Cases cited: People v. Hernandez
(2010) (2008) 45 Cal.4th 295; People v. Greenwood (2010) 189 Cal.App.4th
742. (6:36)

Reasonable Suspicion: A Little Bit of This and a Little Bit of That
with Daniel McNerney, Superior Court Judge, Orange County, CA
In Letner, the California Supreme Court suggests that an offi cer’s suspicion of
two different types of possible criminal activity might combine to form reasonable
suspicion for a traffi c stop. Case cited: People v. Letner (2010) 50 C4 99).
(9:56)

Opening Dryer Door Reasonable Under Fourth Amendment
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Discusses a case fi nding an offi cer acted reasonably for Fourth Amendment
purposes by opening a dryer door (conduct that revealed the presence of
drugs) during the search for a probationer because the dryer was making loud
noises and inhibiting the offi cer from communicating with other persons in the
residence in a safe manner. Case cited: People v.Smith (2010) 190 Cal.App.4th
572. (12:12)

VC§14602.6 Impounds
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Offi ce
VC§14602.6 authorizes 30-day impound of vehicle driven by someone never
licensed, or on suspended/revoked CDL. Other cases discussed include:
Miranda v. City of Cornelius (9 Cir. 2005) 429 F.3d 858 – Oregon impound
violated the 4th Amendment; Salazar v. Maywood (9 Cir. 2011) Unpublished
opinion – Impounds pursuant to VC§14602.6 are not unconstitutional. (6:05)

Use of Night Vision Goggles Not a Search
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
The use of night vision goggles does not transform law enforcement observations
into a search. Cases cited: Kyllo v. United States (2001) 533 U.S. 27;
People v. Liang 2010 WL 5072046. (5:25)

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March 2011 Edition - Case Law Today

Transporting Medical Marijuana
with William W. Bedsworth, Appellate Court Justice, State of California
Robert Victor Wayman was stopped for a traffi c violation and found to be DUI.
Search of the interior of the car turned up marijuana. Search of the trunk
turned up 31 baggies of marijuana, concentrated cannabis, and collection of
paraphernalia. Wayman’s defense was that he had the written permission of a
doctor to use marijuana for medicinal purposes and kept it in his trunk because
his parents –with whom he lived– did not want it in their house. Justice Bedsworth,
who wrote the opinion upholding Wayman’s conviction, explains why this
defense did not fl y. Case cited: People v. Wayman (2010) 189 Cal. App. 4th
215. (5:37)

Pandering Statute Doesn't Cover Engaging Prostitute for Self
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
The subdivisions of the pandering statute that make it unlawful to (1) cause,
induce, persuade, encourage another person to become a prostitute by promises,
threats, violence, or by any device or scheme and unlawful or (2) procure
another person for the purpose of prostitution are inapplicable when the suspect
only encourages the person to engage in prostitution with the suspect himself.
Cases/Statutes cited: People v. Dixon (2011) 191 Cal.App.4th 1154; People v.
Roderigas (1874) 49 Cal. 9; Pen. Code §§ 266i (a)(1)&(2), 647(b). (4:37)

Due Process: Delay in Filing Cases
with Daniel McNerney, Superior Court Judge, Orange County, CA
A delay in the fi ling of a case due to the crime labs failure to detect important
forensics evidence will not result in a dismissal, unless the defendant can demonstrate
that he has been “substantially” prejudiced by the delay. Case cited:
People v. Cowan (2010) 50 C4 401. (9:46)

Searches of Cell Phones Seized Incident to Arrest
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Offi cers may conduct a warrantless search of a cell phone seized from the person
of the arrestee incident to arrest even if the search takes place a substantial
time after the arrest. However, the search of a cell phone remote in time or
place from the arrest may not be similarly justifi ed where the cell phone was
not seized from the arrestee’s person but was simply found within the area of
immediate control of the arrestee at the time of the arrest and where there is no
longer any danger that the arrestee might gain access to the phone. Cases cited:
People v.Diaz (2011) 51 Cal.4th 84; United States v. Chadwick (1977) 433 U.S.
1. (9:51)

"Unlawful Vehicle Stop and Search"
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Offi ce
Ninth Circuit fi nds that offi cers are subject to civil liability for vehicle stop and
search, based partly on recording of conversations by one offi cer when a second
offi cer was unaware of the recording. Case cited: Liberal v. Estrada (9th Cir.
2011) WL 149348. (7:10)

Motel Room Used for Prostitution = "Inhabited Dwelling?"
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Robbery committed in an inhabited dwelling is fi rst-degree robbery. A motel
room being used by a robbery victim to engage in prostitution, socialize, and
eat meals can be an “inhabited dwelling.” Cases/Statutes cited: People v. Long
(2010) 189 Cal.App.4th 826; Pen. Code, § 211/212.5. (11:03)

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April 2011 Edition - Case Law Today

Cross-Gender Strip Searches
with William W. Bedsworth, Appellate Court Justice, State of California
In this case, the 9th Circuit held that having a female deputy participate in a strip
search of a male inmate violated his Fourth Amendment rights. This has consistently
been the holding of the federal courts, and Justice Bedsworth explains
that unless the U.S. Supreme Court holds otherwise, it is the law. But there is
one small exception to the rule. Case cited: Byrd v. Maricopa County Sheriff’s
Dept. (2011) DJDAR 300 (January 6, 2011). (7:29)

Seizure Requires Submission to Authority by Suspect
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A suspect’s momentary hesitation and brief exchange with an offi cer who had
ordered the suspect to stop and stand in front of a patrol car did not constitute
the necessary “submission to authority” that would render the suspect seized
for Fourth Amendment purposes where the suspect took off on headlong flight
immediately thereafter. Case cited: United States v. Smith (9th Cir. 2011) 2011
WL 339209. (4:56)

Miranda: "Selective" Invocation of Silence
with Daniel McNerney, Superior Court Judge, Orange County, CA
In this case, the Federal 9th Circuit interprets a suspects’ refusal of a detective’s
request to demonstrate how a shooting occurred as an invocation of his right
to silence as to that request. Case cited: Hurd v. Terhune (2010) DAR 13303.
(8:09)

Emergency Aid Exception Based Solely on Objective Factors
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Under the emergency aid exception to the warrant requirement, the validity
of entry is not judged based on the offi cers’ subjective intent for entry but on
whether there exists an objectively reasonable basis for believing medical assistance
is needed or persons are in danger. Such objectively reasonable basis
existed for entry into a home and locked upstairs room where police received
a report of a male victim being shot but found a female victim with multiple
gunshot wounds on the front porch, along with another injured male who gave
confl icting and unreliable answers about who might be inside the house, and
there was blood on the front door entrance. Case cited: People v.Troyer 2011
WL 36292733. (10:51)

Retired Peace Officers and Assault Weapons
with William W. Bedsworth, Appellate Court Justice, State of California
One of Governor Brown’s last actions as Attorney General was to sign an
Attorney General Opinion to the effect that retired peace offi cers are not
entitled to possess assault weapons they purchased while peace offi cers. Justice
Bedsworth explains what an Attorney General Opinion is and what this specific
opinion provides. (7:46)

Miranda's Public Safety Exception, Nonverbal Consent,
and Tent Curtilages
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
When detaining a suspect based on suspicion of his having unlawfully fi red a
gun, police may, before Mirandizing the suspect, ask about the location of the
fi rearm under the public safety exception to the Miranda rule. Consent to a
search may be conveyed by a nod of the head. And a tent on a public campground
has no “curtilage” subject to Fourth Amendment protection. Case cited:
United States v. Basher (9th Cir. 2011) 629 F.3d 1161. (9:33)

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May 2011 Edition - Case Law Today

Miranda: Seibert v. Elstad
with Daniel McNerney, Superior Court Judge, Orange County, CA
In Thompson v. Runnel, a divided federal appellate court discussed the differences between “two-step” interrogations prohibited Seibert, and port-Miranda questioning allowed under Elstad after an initial statement taken without Miranda. Case cited: Thompson v. Runnel (2010) DJDAR 14271. (10:27)

Downloading Data From Vehicle's EDR is Search
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Downloading data from a vehicle’s event data recorder (also known as the sensing
and diagnostic module, or SDM)-- even after the vehicle has been lawfully seized-- requires probable cause to believe the event data recorder will contain evidence of a crime. Case/Statute cited: People v. Xinos (2011) 192 Cal.App.4th 637; Veh. Code § 9951. (12:12)

Student Searches: A Primer
with William W. Bedsworth, Appellate Court Justice, State of California
Using the recent case of In re Sean A., Justice Bedsworth outlines the basic rules applicable to the search of students. Watch this and you’ll know enough to make legal/illegal search calls about school searches. Case cited: In re Sean A. (2010) 191 Cal. App. 4th 182. (7:45)

Miranda's Booking Question Exception & Gang Affiliation Queries
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Questions asked during the booking process regarding gang affiliation or monikers do not need to be preceded by Miranda warnings where the questions are asked to further where the questions are designed to elicit incriminatory admissions but because they are reasonably related to a legitimate administrative
purpose in the “classification of inmates by gang affiliation for jail security. Cases cited: People v. Gomez (2011) 192 Cal.App.4th 609; Pennsylvania v. Muniz (1990) 496 U.S. 582. (10:31)

Can An Attorney Invoke Miranda?
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Office
Miranda “rights” cannot be invoked anticipatorily, before custodial interrogation is imminent or ongoing, and an attorney’s filing of written notice that his client invokes his right to silence and counsel as to all police questioning on all cases is invalid. Cases cited: McNeil v. Wisconsin (1991) 501 US 171; People v. Avila (2000) 75 Cal. App. 4th 416. (7:46)

Custody for Miranda Purposes Is Fluid
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Just because a suspect is detained in the back of a patrol car in a manner that would be custodial for Miranda purposes if the suspect were interrogated at that point, this does not mean a subsequent interrogation that takes place immediately after the suspect has been removed from the patrol car will also be deemed custodial for Miranda purposes. Case cited: People v. Thomas (2011) 51 Cal.4th 449. (6:48)

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June 2011 Edition - Case Law Today

DUI Checkpoints: A Review
with William W. Bedsworth, Appellate Court Justice, State of California
The Palmer case sets out the rules for setting up a DUI checkpoint for random
stops, and the best preparation for setting one up is reading that case. Justice
Bedsworth analyzes a recent case by the San Francisco Superior Court in
which it applied the Ingersoll criteria to a San Francisco checkpoint. This video
supplements Ingersoll and departmental guidelines about setting up a DUI
checkpoint. Cases cited: Ingersoll v. Palmer (1987) 43 Cal 3d 1321; People v.
Alvarado (2011) Cal App 4th Supp. (9:54)

“I’m Doing My Right” = Unambiguous Invocation
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Discusses a case fi nding a suspect had unambiguously invoked his right to
silence where, after being advised of his Miranda rights and being asked repeatedly
if he understood those rights, the suspect twice stated, “I’m doing my
right.” Cases cited: People v. Manzo (2011) 192 Cal.App.4th 637; Berghuis v.
Thompkins (2010) 130 S.Ct. 2250. (3:56)

“Shoot, Don’t Shoot Liability”
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Offi ce
In Sacramento County v. Lewis to prove that a police act causing death is unconstitutional,
a plaintiff must show that the offi cer acted with “a purpose to cause
harm unrelated to the legitimate object of arrest.” In A.D. v. Markgraf shooting
and killing a motorist who is ramming police cars following a high-speed pursuit
has not been clearly established as violating the Constitution, so the offi cer is entitled
to qualifi ed immunity from suit. Damages and fees of $619,861 reversed.
Cases cited: Sacramento County v. Lewis (1998) 523 US 833; A.D. v. Markgraf
(9 Cir. 2011) WL 1338118. (6:32)
Detaining/Frisking Persons During Juvenile Probation Searches
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Discusses a case fi nding a visitor present in the home of a juvenile probationer
during a probation search was properly detained-- even though the visitor was
not engaged in criminal activity-- where one of the juvenile probation conditions
was not to associate with gang members, there was evidence the visitor might be
a gang member based on his tattoos, and the detention was necessary for security
purposes. Case cited: People v. Rios (2011) 193 Cal.App.4th 584. (9:07)

Miranda: Police Station Questioning
with Daniel McNerney, Superior Court Judge, Orange County, CA
Discusses the circumstances under which police station questioning may occur
without Miranda advisements. Case cited: People v. Moore (2011) 51 C4 386.
(7:56)

Temporarily Grabbing Steering Wheel Equals “Driving”
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A passenger will be deemed to have “driven” a vehicle for purposes of the
driving under infl uence statutes and other Vehicle Code sections where the
passenger grabs the steering wheel and turns it, causing the vehicle to crash.
Case/Statute cited: In re F. H. (2011) 192 Cal.App.4th 1465; Veh. Code § 305.
(5:10)

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July 2011 Edition - Case Law Today

"Ambiguity About a Lawyer"
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Office
In Sessions v. Runnels the Ninth Circuit found reasonable a California court’s
ruling that a murder suspect did not unambiguously invoke counsel by asking,
“There wouldn’t be any possible way that I could have a lawyer present while
we do this?” and adding that his father had “asked me to ask you guys to
get me a lawyer.” After officers gave a warning and carefully explained the
suspect’s right, his reply, “Let’s talk,” was a valid waiver and his statement was
admissible at trial. Case cited: Sessions v. Runnels (9 Cir. 2011) WL 2163970.
(6:09)

Seatbelt Law Requires Wearing Lapbelt AND Shoulder Harness
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
In order to be “properly restrained by a safety belt” within the meaning of section
27315(d)(1), a motorist or passenger in a vehicle manufactured after 1996
must wear the entire shoulder harness and lap belt combination restraint system
while the vehicle is being operated. Case/Statute cited: People v. Overland
(2011) 193 Cal.App.4th Supp. 9; Veh. Code § 27315(d)(1). (3:15)

Police-Created Exigency
with Daniel McNerney, Superior Court Judge, Orange County, CA
The U.S. Supreme Court in Kentucky v. King holds that police are not prohibited
from employing the “exigent circumstances” rule to make a warrantless entry
to prevent the destruction of evidence, even where police may have created the
exigency by appearing and announcing their presence. Case cited: Kentucky v.
King (2011) DAR 6953. (6:48)

Expectation of Privacy in Friend's Home Unreasonable
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A suspect who enters another’s home solely for purposes of evading the police
has no reasonable expectation of privacy in the home even though he is a
frequent visitor to the home and is allowed to enter without knocking. There is
a heightened expectation of privacy in a locked bathroom but not if it is entered
for a reason other than for its intended purpose. Case cited: People v. Magee
(2011) 194 Cal.App.4th 178. (9:49)

Probable Cause to Search a Car
with William W. Bedsworth, Appellate Court Justice, State of California
In United States v. Ewing, police stopped a car for a registration violation.
They asked if any of the occupants were on probation or parole and one– who
appeared nervous and showed signs of possibly being under the infl uence– said
he was. Then the offi cer saw money protruding from the space between the
passenger side window and the door weather-stripping. He asked whose money
it was and all occupants of the car denied it was theirs. None seemed to know
how it got there. As Justice Bedsworth explains, this was probable cause to
search the car and nothing else was necessary to unfold the bills and see that
they were counterfeit. Case cited: United States v. Ewing (2011 9th Circuit)
____F 4745. (6:15)

Pocket Bikes Are a "Motor Vehicle" Under Vehicle Code
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A “pocket bike” is a “motor vehicle” under the Vehicle Code and so while the
pocket bike may not be “highway legal,” the driver of a pocket bike may be
found to have committed violations of various Vehicle Code sections, including
evading the police in violation of Vehicle Code Section 2800.2. Case/Statutes
cited: People v. Varela (2011) 193 Cal.App.4th 1216; Veh. Code §§ 414, 473,
670, and 2800.2. (3:13)

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August 2011 Edition - Case Law Today

Miranda: Custody Checklist
with Daniel McNerney, Superior Court Judge, Orange County, CA
Police offi cers are encouraged to use a “custody checklist” to evaluate whether
their contact with a suspect has become de facto custody: 1) Location, 2)
Duration, 3) Indicia of restraints; and, 4) Nature of the conversation. Case cited:
U.S. v. Redlighting (2010) DAR 16289. (11:01)

Remotely Opening Garage Door Not Burglarious Entry
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A person (with the intent to commit a theft or a felony) who uses a remote control
to open a garage door from outside the house does not “enter” the house
for purposes of the crime of burglary. The only crime committed is attempted
burglary. Case/Statute cited: People v. Magness 2011 WL 2295135; Pen. Code
§ 459. (6:21)

Hit and Run: Driver Must Identify
with William W. Bedsworth, Appellate Court Justice, State of California
If you stop 100 people on the street and ask them what their legal obligation
is if they get into an accident where it is probable someone has been injured,
you will probably fi nd 75 who know they have to stop. You may fi nd 20 who
know they are obliged to render “reasonable assistance” to the injured person.
But you might not fi nd any who know they are required to identify themselves
as the driver. They would probably think this is a 5th Amendment violation. It
is not, and Justice Bedsworth explains the rule in discussing People v. Guzman
(2011) DJDAR 7755 (May 31, 2011). (8:47)

Reliance on Jailhouse Informant Okay If Info Corroborated
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Probable cause to arrest or conduct a search may be based on information from
a jailhouse informant so long as the information is corroborated. This video
discusses a case fi nding offi cers provided suffi cient corroboration of information
provided by such an informant regarding a defense attorney who was smuggling
methamphetamine into the jail. Case cited: Garcia v. County of Merced (9th Cir.
2011) 639 F.3d 1206. (7:31)

"Second Attempt to Get a Waiver"
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Offi ce
In Michigan v. Mosley the US Supreme Court ruled that two hours after a
custodial suspect invoked his right to silence when questioned about a robbery,
it was OK for homicide detectives to re-approach him for a waiver on a homicide
case since his robbery invocation had been “scrupulously honored.” In Sessoms
v. Runnels the Ninth Circuit ruled that per Mosley, homicide detectives from
California validly interrogated a murder suspect 5 days after he had invoked
silence when arrested and Mirandized by Oklahoma offi cers. Cases cited:
Michigan v. Mosley (1975) 423 US 96; Sessoms v. Runnels (9 Cir. 2011) WL
2163970. (6:21)

Privacy in IP Addresses and Stale Warrants
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Internet users have no reasonable expectation of privacy in their IP address or
other information used by their Internet provider to route messages. A warrant
is not stale where it remains likely the items sought will still be present at the
residence that is the target of the warrant. Case cited: People v. Stipo (2011)
195 Cal.App.4th 664. (9:04)

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September 2011 Edition - Case Law Today

Miranda: You Really Need All Four Advisements
with Daniel McNerney, Superior Court Judge, Orange County, CA
If an offi cer fails to give any one of the four Miranda advisements, the
statement is subject to suppression. Case cited: People v. Polk (2010) 190 CA4
1183. (6:16)

Lawful to Superimpose Child’s Head On Pornographic Photo
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
There is no violation of the statute prohibiting possession of child pornography
if the person depicted is an adult engaging in specified sexual acts but a real
child’s head from some other non-sexual photograph is superimposed on the
adult’s body since the statute requires a real child to have been used in the
production of the pornography and to have actually engaged in or simulated
the specified sexual acts. Case/Statutes cited: People v. Gerber (2011) 196 Cal.
App.4th 368; Pen. Code § 311.11. (6:22)

Cocaine Base Equals Crack Cocaine
with William W. Bedsworth, Appellate Court Justice, State of California
The United States Supreme Court has decided– apparently once and for all–
that there is no legally cognizable difference between cocaine base and crack
cocaine. They’ve held that statutes that refer to “cocaine base” refer equally to
crack cocaine, cocaine paste, and cocaine base. Justice Bedsworth explains why
that is, and why ordering cocaine is different. Case cited: DePierre v. United
States (2011) 1315 Ct. 2225, 179 Led 2d 114. (4:32)

Officer Can Decide When DUI Blood Test Feasible
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Under the implied consent law, a refusal occurs where the driver elects a blood
test and cooperates in taking the test, but efforts to administer the test are
unsuccessful (i.e., because the technician is having difficulty withdrawing blood),
and the driver then refuses to take a breath test. The officer is given reasonable
discretion to determine whether it is feasible to give a particular chemical test.
Case/Statutes cited: White v. Department of Motor Vehicles (2011) 196 Cal.
App.4th 794; Veh. Code §§ 13353, 23612. (7:55)

“Realignment”
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Office
Effective October 1, 2011, the “realignment” bill makes many felonies
punishable by county jail instead of state prison, and transfers most parole
supervision and revocation proceedings from the state to the counties. Violent
felonies, serious felonies, registrable sex offenses and new felonies after prior
“strikes” are still prison cases, along with about 58 other crimes. Cases/Statutes
cited: Assembly Bill (AB)109. (6:37)

Mistake of Law Invalidates Vehicle Stop
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A mistake of law does not provide objectively reasonable suspicion to justify a
detention. Thus, an officer’s detention of a vehicle for having only one Florida
license plate violates the Fourth Amendment because California law does not
require out-of-state vehicles to display more than a single license plate if the
other jurisdiction only issues a single plate-- and Florida only issues a single
license plate. California law does require the plate be attached to the rear of
the vehicle, but in the instant case, the plate was so attached. Case/statutes
cited: People v. Reyes (2011) 196 Cal.App.4th 856; Veh. Code §§ 5200, 5202. (7:30)

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October 2011 Edition - Case Law Today

Custody: The Supreme Court Adds “Age” to the Equation
with Daniel McNerney, Superior Court Judge, Orange County, CA
When it comes to questioning minors, the Supreme Court now holds that
the minor’s age is a factor in determining custody. Case cited: J.D.B. v.
North Carolina (2011) DAR 8827. (8:32)

Detentions Based on Parking Violations Okay
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
The fact that parking violations are only subject to civil penalties and
administrative enforcement does not prevent police officers from physically
detaining a suspect for parking violations, including parking in a
fire lane. Case/Statutes cited: People v. Bennett (2011) 197 Cal.App.4th
907; Veh. Code §§ 22500.1; 40200; and 40202. (6:26)

Renumbering of Weapons Statutes
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Office
The “Dangerous Weapons Control Act of 2010” renumbers 1000 sections
of 10 codes, effective January 1, 2012. Most laws relating to firearms
and other dangerous weapons are re-located in new Part 6 of the Penal
Code under new section numbers. Officers must learn the new section
numbers for arrest and booking purposes, but must keep old numbers
handy when reading rap sheets and old reports. Cases/Statutes cited:
Assembly Bills (AB) 1080 and 1115. (6:20)

Facebook Posting In Another’s Name Can Be Identity Theft
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A person can be charged with violating the statute prohibiting identity
theft based on the person obtaining a victim’s email password, using
that password to gain access to the victim’s Facebook account, and then
using access to that account to post obscene messages purportedly from
the victim on the Facebook pages of the victim’s friends. Case/Statutes
cited: In re Rolando S. (2011) 197 Cal.App.4th 936; Pen. Code § 530.5.
(9:38)

Miranda: Booking/Jail-Related Questions
with Daniel McNerney, Superior Court Judge, Orange County, CA
Non-investigative questioning or conversation with inmates regarding
their custody status does not constitute “custodial interrogation” for
purposes of Miranda. (6:35)

Secret Recording of Inmates By Jailhouse Informants
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Even where a jailhouse informant is acting as a law enforcement agent,
it is not necessary for the informant to provide Miranda warnings before
speaking with a fellow inmate about an uncharged crime when the
inmate is unaware the informant is acting as a law enforcement agent.
Also, it is not a violation of Massiah rule for law enforcement to use a
jailhouse informant to elicit and record statements of a fellow inmate
about crimes with which the inmate is not yet charged. Cases cited:
People v. Gonzales (2011) 52 Cal.4th 254; Massiah v. United States
(1964) 377 U.S. 201. (8:24)

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November 2011 Edition - Case Law Today

Dog Sniffs Pickup Truck
with William W. Bedsworth, Appellate Court Justice, State of California
During a traffic stop, police brought a narcotics dog to the scene. The dog sniffed
around the pickup truck that had been stopped, put his paws on the body of the
truck and alerted to a bag in the truck bed. The bag contained ephedrine and
other methamphetamine precursors. Based on this, a warrant was obtained for
defendants’ home which turned out to be a meth lab. Justice Bedsworth explains
the rules applicable to dog searches of a vehicle. Cases cited: People v. Stillwell
(2011) 197 Cal. App. 4th 996. (5:21)

Consent To Search Jointly-Owned Computer
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Where two persons jointly own and use a computer, each has authority to
consent to search of the computer-– at least where the files of are not password-protected.
Thus, an ex-girlfriend of a suspect who had been temporarily given
a computer by the suspect when the suspect went to prison had both actual and
apparent authority to consent to a search of the computer where: (1) there were
no restrictions placed on the ex-girlfriend’s use or possession of the computer;
(2) the ex-girlfriend twice sent the computer out for repairs, and (3) the
suspect’s files on the computer were not password-protected. Case cited: United
States v. Stanley (9th Cir. 2011) 2011 WL 3275959. (8:21)

Civil Liability Protection Diminished
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Office
In Devenpeck v. Alford the US Supreme Court held that a bad arrest for Crime A
is still OK if there was PC to arrest for Crime B. In Rosenbaum v. Washoe County
the Ninth Circuit ruled that Devenpeck does not protect an arresting officer from
civil liability for making a bad arrest for Crime A if Crime B was too obscure and
unenforced. Cases cited: Devenpeck v. Alford (2004) 543 US 146; Rosenbaum
v. Washoe County (9th Cir. 2011) DJDAR 12769. (6:16)

Standard for Believing Probationer Lives at Residence
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
An officer conducting a probation search may enter a dwelling based on
a “reasonable belief,” (i.e., a standard falling short of probable cause to
believe) that the probationer lives in the dwelling and is present at the time.
Such reasonable belief arose based on multiple utility records showing the
probationer listed the searched residence as his address. Case cited: People v.
Downey (2011) 198 Cal.App.4th 652. (8:26)

P.C. 296: DNA Samples From Arrestees
with Daniel McNerney, Superior Court Judge, Orange County, CA
In Buza, the court requires more than an officer’s determination of probable
cause in order to obtain a DNA sample from an arrestee. (8:32)

When Use of Pepper Spray Equals Excessive Force
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Use of pepper spray and/or a police baton is considered an intermediate use of
force that constitutes a significant intrusion on a suspect’s liberty interest that
must be justified by a significant government interest. It is rarely necessary,
if ever, for a police officer to employ such force without warning against an
individual who is suspected only of minor offenses, is not resisting arrest, and,
most important, does not pose any apparent threat to officer or public safety.
Case cited: Young v. County of Los Angeles 2011 WL 3771183. (10:17)

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December 2011 Edition - Case Law Today

Search Warrant: No Slanted Affidavits
with Devallis Rutledge, Special Counsel, Los Angeles CO District Attorney's Office
Officers face liability for search and arrest based on affidavit that contained
false statements and material omissions, to manipulate magistrate’s PC
determination in internet child-porn case. Case cited: Chism v. Washington State
Patrol (9th Cir. 2011) DJDAR 13011. (6:31)

Vehicle Search Exception Requires Probable Cause
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
Just because there is probable cause to arrest a passenger in a vehicle does
not mean there is probable cause to search the vehicle for evidence of a crime.
Thus, a search of a vehicle for identification of a teenage passenger who was
arrested for providing false information to the police was invalid where there
was not probable cause to believe such identification would be found inside the
car. Case cited: U.S. v. Rogers (9th Cir. 2011) 656 F.3d 1023. (10:49)

Search Warrants: Computer Images
with Daniel McNerney, Superior Court Judge, Orange County, CA
Discusses the sufficiency of probable cause to issue a search warrant for a
computer. Cases cited: U.S. v. Krupa (2011) DAR 2092; U.S. v. Battershell
(2006) 457 F.3d 1048; U.S. v. Hill (2006) 459 F.3d 966. (8:14)

Searching Cellphone in Car Incident to Drug Arrest
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
An officer properly searched a cell phone found inside the passenger
compartment of a car after the driver was arrested for being under the influence
of drugs because there was reason to believe that evidence of that crime (such
as paraphernalia or drugs) might be located in the passenger compartment.
It did not matter whether there was also reason to believe the phone itself
might contain evidence of the crime but, in fact, there was reason to believe
such evidence (i.e., messages relating to the purchase or use of drugs and/
or evidence of what type of drug was being used) would be located in the
phone. Finally, the search of the phone could not be justified as an inventory
search because there was no evidence of a policy governing the search of closed
containers such as cell phones. Case cited: People v. Nottoli (2011) 199 Cal.
App.4th 531. (11:51)

Search of Jail Lockers
with William W. Bedsworth, Appellate Court Justice, State of California
Brian Boulter was prosecuted for drug possession based on drugs he stashed
in a visitor’s locker at the Men’s Central Jail in Los Angeles. Before visiting an
inmate, Boulter stored his belongings in a locker provided by the jail 41 feet
from the jail entrance. The lockers had keys. When Boulter was found with a
camera inside the jail, deputies went outside and searched the locker, finding
the drugs. The court held there is no reasonable expectation of privacy in a
jail visitor’s locker– even if keys are provided. Justice Bedsworth explains this
important case for jail administration. Case cited: People v. Boulter (2011)
DJDAR 14802 (September 30, 2011). (3:45)

DNA Testing of Saliva Left on PAS Mouthpiece
with Jeff Rubin, Deputy District Attorney, Alameda County, CA
A suspect who consents to taking a PAS test has no legitimate expectation
of privacy in the saliva left on the mouthpiece used during the test where
the mouthpiece is ordinarily discarded and the suspect does not wipe the
mouthpiece off after blowing into the PAS device. Thus, any subsequent testing
of the mouthpiece for DNA evidence will not be deemed a search for Fourth
Amendment purposes. Case cited: People v. Thomas 2011 DJDAR 15833 [2011
WL 5110251] (6:42)

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