Case Law Today Series

Titles

January 2006 Edition - Case Law Today

PAS Devices
with William Bedsworth, Justice of the Court of Appeal, State of California
The use of preliminary alcohol screening (PAS) devices has made defense of
DUIs considerably more difficult. Even if regarded simply as additional field
sobriety tests, PASs carry a lot of weight, yet they are coming under fire in
an increasing number of cases. Justice Bedsworth examines Hallquist and
explains what rules for PAS usage can be derived from the case. Case cited:
People v. Hallquist (05 Daily Journal DAR 12075). (7:59)

Anal Penetration Through Clothing Is Sodomy
with Jeff Rubin, Alameda County District Attorney's Office
Where a victim’s anus is penetrated by a perpetrator’s penis, it is a violation
of the statute prohibiting sodomy, regardless of whether the victim is wearing
clothes such as underwear and there is no actual skin-to-skin contact. If it
cannot be determined whether the object doing the penetrating is a penis or
some other object, the statute violated is the one prohibiting penetration by a
foreign object. Case/Statutes cited: People v. Ribera (2005) 133
Cal.App.4th 81; Pen. Code §§ 286, 289. (3:49)

PC §12022(b): Personal Use of a BB Gun
with Daniel McNerney, Superior Court Judge, State of California
A BB gun is a “dangerous weapon” within the meaning of PC §12022(b),
regardless of whether it is operable or capable of inflicting GBI. Cases and
Statutes cited: In re Bartholomew D. (2005) 131 CA4 317; In re Arturo H.
(1996) 42 CA4 1694; PC §12022(b); PC §12001(g); PC §626.10. (7:27)

Not All Stationhouse Interviews Are Custodial Interrogation
with Jeff Rubin, Alameda County District Attorney's Office
Just because a suspect is a juvenile, is interviewed in an isolated portion of a
police station, and is told he is a suspect does not mean that the juvenile is in
custody for purposes of the Miranda rule. No Miranda warning are likely
going to be required in circumstances where the juvenile is voluntarily
brought down to the station and told he is not under arrest and free to leave
at any time. Case cited: In re Kenneth S (2005) 133 Cal.App.4th 54. (6:33)

Courtroom Apparel: Victim's Family
with William Bedsworth, Justice of the Court of Appeal, State of California
While a police officer’s job does not usually extend to monitoring the clothing
worn at trial, a recent 9th Circuit case should be considered by officers. In this
case, a murder conviction was reversed because of what the victim’s family
wore to court during the trial. Justice Bedsworth explains how this could
happen and suggests mentioning it to your witnesses or bringing it to the
attention of the prosecution if it is being done by the defendant’s supporters.
Case cited: Musladin v. Lamarque (05 Daily Journal DAR 12592). (7:16)

Cases Broadening the Rape Statute
with Jeff Rubin, Alameda County District Attorney's Office
California courts have been increasingly willing to find a rape occurred in
situations involving little if any force greater than that involved in
perpetrating the act of intercourse against the will of the victim as well as in
situations where the nonconsensual intercourse is accompanied by consensual
sexual contact. This video discusses the latest cases in this trend. Cases cited:
In re Jose P. (2005) 131 Cal.App.4th 110; People v. Griffin (2004) 33
Cal.4th 1015; In re John Z. (2003) 29 Cal.4th 1056. (6:15)

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February 2006 Edition - Case Law Today

Vehicle Stops: Anonymous Tips and Corroboration
with Daniel McNerney, Superior Court Judge, State of California
Minimal corroboration of an anonymous tip of unsafe or erratic driving may
justify a stop of the reported vehicle. Cases cited: Lowry v. Gutierrez (2005)
129 CA4 926; People v. Carter (2005) 36 C4 1114. (8:29)

Apparent Consent by Third Party Searches
with Jeff Rubin, Alameda County District Attorney's Office
If police obtain consent to search a container from someone other than the
owner of the container, the consent will still be held valid if the officer had an
actual and objectively reasonable belief the person giving consent had
apparent authority (i.e., mutual use and joint access or control over the
container) to give consent. Cases cited: United States v. Ruiz (9th Cir. 2005)
428 F.3d 877; United States v. Welch (9th Cir. 1993) 4 F.3d 761. (10:17)

Public Meetings for Police Task Forces?
with William Bedsworth, Justice of the Court of Appeal, State of California
Discusses a Los Angeles Court of Appeal case where the court held that a
police crime-fighting task force that had been operating behind closed doors
for 15 years was a public agency and had to conduct its meetings in public
under the Brown Act. While this caused a great deal of consternation in many
quarters, Justice Bedsworth explains that it’s not as catastrophic as it sounds
and not all police task force meetings need be public. Case Cited: McKee v.
Los Angeles-Interagency Metropolitan Police Apprehension Crime-Task Force
(05 Daily Journal DAR 13589) (November 28, 2005). (7:47)

Requirement for Infraction Arrests
with Jeff Rubin, Alameda County District Attorney's Office
Generally an officer may not take someone who commits an infraction into
custody if the person provides satisfactory ID and signs a written promise to
appear. However, if a suspect does not present satisfactory ID, an officer
may still, in his or her discretion, take the arrestee into custody even if the
suspect is willing to submit a thumbprint and sign the promise to appear. AG
opinion/statutes cited: AG Opinion 05-206; Pen. Code §§ 853.6 & 640; Veh.
Code § 40303. (6:00)

Miranda: Special Advisement for Foreigners?
with Daniel McNerney, Superior Court Judge, State of California
A suspect in a criminal case who hails from a foreign country and is
unfamiliar with the American criminal justice system is not entitled to special
advisements or additional explanations of the meaning of the Miranda
rights. Case cited: U.S. v. Labrada (2005) DAR 13239. (6:02)

When Right to Counsel Attaches
with Jeff Rubin, Alameda County District Attorney's Office
A suspect’s right to counsel attaches in California when a prosecutor files a
complaint. Thus, even if the suspect has not been arrested or arraigned,
once a complaint has been filed, law enforcement must elicit a waiver of the
right to counsel before interviewing the suspect about the crime charged in
the complaint. Cases/Statute cited: People v. Viray (2005) 134 Cal.App.4th
1186; Texas v. Cobb (2001) 532 U.S. 162; Patterson v. Illinois (1988) 487
U.S. 285; Massiah v. United States (1964) 377 U.S. 201; Pen. Code § 817.
(7:40)

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March 2006 Edition - Case Law Today

No Miranda Necessary
with William Bedsworth, Justice of the Court of Appeal, State of California
The Miranda advisement need not be given if the suspect is neither under
arrest nor under such significant restraint as to amount to the functional
equivalent of an arrest. In this case, a suspect’s statements made at the
police station were held admissible without an advisement because the
suspect was held not to be in custody. Justice Bedsworth explains how that
conclusion was reached and how this case may provide a useful interrogation
strategy. Case cited: United States v. Norris (2005 DJDAR 13244). (5:36)

The Latest on "Estes" Robberies
with Jeff Rubin, Alameda County District Attorney's Office
A robbery occurs when a suspect, with the intent to steal, uses force or fear
to take property from the immediate presence of the owner of the property.
This segment discusses cases upholding robbery convictions where the initial
taking occurred outside the victim’s immediate presence and without the use
of force or fear, but force or fear was later used to prevent recovery of the
property. Cases cited: People v. Gomez (2005) 134 Cal.App.4th 1241;
People v. Estes (1983) 147 Cal.App.3d 23. (8:29)

Vehicle Impounds: Community Caretaking Doctrine
with Daniel McNerney, Superior Court Judge, State of California
Under the “Community Caretaking” doctrine, police may impound a vehicle
and inventory its contents where the vehicle is impeding traffic or poses a
threat to public safety. Cases cited: Cady v. Dombrowski (1973) 413 U.S.
433; Miranda v. City of Cornelius (2006) DAR 13393. (6:01)

Searches Incident to Arrest: Contemporaneous Requirement
with Jeff Rubin, Alameda County District Attorney's Office
Pursuant to a lawful custodial arrest of the occupant of a vehicle, an officer
may, “as a contemporaneous incident of that arrest,” search the passenger
compartment of the vehicle. Discusses cases involving various periods of
delay and different intervening events to explain when a search incident to
arrest will be deemed contemporaneous. Cases cited: United States v.
Weaver (9th Cir. 2006) 433 F.3d 1104; United States v. McLaughlin (9th
Cir.1999) 170 F.3d 889; United States v. Ramos-Oseguera (9th Cir.1997)
120 F.3d 1028; United States v. Vasey (9th Cir.1987) 834 F.2d 782. (7:05)

Bad Checks Or Not?
with William Bedsworth, Justice of the Court of Appeal, State of California
California Penal Code §476a makes it illegal to write a check without
“sufficient funds in or credit with” the bank upon which a check is drawn.
Does a check guarantee card qualify as “credit with” the bank that issues it?
And what if the check-writer exceeds the amount of the guarantee? Doesn’t
that expose him/her to a 476a liability? Not according to the 9th Circuit Court
of Appeal. This is a critical decision for everyone who ever sees a 476a.
Case cited: Goldyn v. Hayes (2006) DJDAR 1399 (2/2/06). (7:36)

Grand Theft: Taking From the Person
with Jeff Rubin, Alameda County District Attorney's Office
What would otherwise be a petty theft is converted into a grand theft if the
suspect takes the property from the “person” of the victim. This video
discusses various cases explaining what it means to take property from the
“person” of another. Cases/Statute cited: In re Jesus O. (2006) 135
Cal.App.4th 237; In re Eduardo D. (2001) 81 Cal.App.4th 545; In re George
B. (1991) 228 U.S. 1088; People v. Huggins (1997) 51 Cal.App.4th 1654;
People v. Williams (1992) 9 Cal.App.4th 1465; People v. McGrath (1976) 62
Cal.App.3d 82; People v. Smith (1968) 278 Cal.App.2d 117; People v.
McElroy (1897) 116 Cal. 583; Pen. Code § 487. (10:42)

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April 2006 Edition - Case Law Today

Knock-Notice: Exigent Circumstances
with Daniel McNerney, Superior Court Judge, State of California
Police activity outside a premises that is reasonably likely to put occupants on
notice of their presence may establish exigent circumstances to justify
dispensing with knock-notice. Case cited: People v. Murphy (2005) 37 C4
490. (7:21)

"Verbal" Acts in Furtherance of Prostitution
with Jeff Rubin, Alameda County District Attorney's Office
In order for there to be a violation of Penal Code section 647(b) for agreeing
to engage in an act of prostitution, there must be an act in furtherance of the
commission of the act of prostitution in addition to the agreement. The act in
furtherance, however, can be a verbal act such as telling an undercover
officer to undress. Cases/Statute cited: Kim v. Superior Court (2006) 136
Cal.App.4th 937; In re Cheri T. (1999) 70 Cal.App.4th 1400; Pen. Code §
647(b). (4:48)

Suspcious Conduct Traffic Stops
with William Bedsworth, Justice of the Court of Appeal, State of California
In Whren, the United States Supreme Court held that if an officer has
articulable suspicious circumstances in support of a vehicle stop, the fact he/
she was more interested in some other facet of law enforcement than he/she
was in issuing a citation is irrelevant. In Willis, this rule was applied to a
factual situation all patrol officers will identify with. Case cited: United States
of America v. Willis (2005) DJDAR 14563. (8:43)

Arming Clauses and "Continuing" Crimes
with Jeff Rubin, Alameda County District Attorney's Office
Discusses cases laying out the rules for determining when a suspect who is
engaged in a “continuing crime” such as drug possession or manufacture can
be considered “armed” for purposes of the arming enhancements. Cases/
Statutes cited: People v. Bland (1995) 10 Cal.4th 991; People v. Delgadillo
(2005) 132 Cal.App.4th 1570; People v. Bradford (1995) 38 Cal.App.4th
1733; Pen. Code §§ 12022(a)&(c). (11:42)

Miranda: "Midstream" Miranda Warnings
with Daniel McNerney, Superior Court Judge, State of California
Deliberate use of a two-step interview process in which a suspect is
interviewed, then given Miranda, then re-interviewed, will result in the
suppression of both statements. Cases cited: Oregon v. Elstad (1985) 470
U.S. 298; Missouri v. Seibert (2004) 542 U.S. 600; U.S. v. Williams (2006)
DAR 1239. (8:31)

Providing False ID Before Booking Violates PC 148
with Jeff Rubin, Alameda County District Attorney's Office
A suspect who gives a false name to police after arrest, even before he or she
is booked, can be charged not only with violating Penal Code section 148.9
but also with violating Penal Code section 148 under the theory the person is
“obstructing” an officer in the discharge of his or her duties. Case/Statutes
cited: People v.Christopher 2006 WL 531269; Pen. Code §§ 148 and 148.9. (4:15)

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May 2006 Edition - Case Law Today

Miranda Warnings for Non-Suspect
with William Bedsworth, Justice of the Court of Appeal, State of California
Miranda usually involves suspects. But officers are well-advised to sometimes
Mirandize someone even if they have no intention of prosecuting them. This
case is a good example, where INS agents investigating alien smuggling
interviewed one of the “smugglees,” in trying to make a case against their
suspect—but later they found the smugglee had committed a crime. They
could not use the smugglee's statement against him because of the failure to
Mirandize. Justice Bedsworth explains the simple test to be applied in
determining whether to Mirandize a non-suspect. Case cited: United States v.
Lin Chen (2006 DJDAR 2522)(3/2/06). (6:43)

The Emergency Doctrine: No On-Scene Verification Needed
with Jeff Rubin, Alameda County District Attorney's Office
The emergency doctrine permits the entry into a home without a warrant
when officers have reasonable grounds to believe that there is an emergency
at hand and an immediate need for their assistance for the protection of life
or property. If those grounds exist, it is not necessary officers gain
additional verification of the emergency at the scene. Case cited: United
States v. Russell (9th Cir. 2006) 436 F.3d 1086. (12:54)

Vehicle Search: Probable Cause to Believe Car Contains Contraband
with Daniel McNerney, Superior Court Judge, State of California
Mere attempts to conceal an object from police does not establish probable
cause to believe the vehicle contains contraband. Cases cited: California v.
Acevedo (1991) 500 U.S. 565; In re Arturo D. (2002) 27 C4 60; People v.
King (2006) – Unpublished. (7:21)

State-Created Danger Doctrine
with Jeff Rubin, Alameda County District Attorney's Office
Discusses the state-created danger doctrine (which allows officers to be sued
when they affirmatively place a person in a position of known or obvious
danger and do so with deliberate indifference) in light of a recent case
involving the failure of an officer to give adequate notice to a witness before
revealing the witness’ identity to a dangerous suspect even though the
witness had asked to be notified ahead of time. Case cited: Kennedy v. City of
Ridgefield (9th Cir. 2006) 439 F.3d 1055. (12:54)

Probable Cause for Warrants: Common Sense!
with William Bedsworth, Justice of the Court of Appeal, State of California
While this case happens to be a child pornography case, Justice Bedsworth
uses it to demonstrate how much easier it is to support a search behind a
warrant than a search without one. Provides a description of the “probable
cause” test for search warrants that is easy to remember and encouraging for
any officer tasked with obtaining a search warrant. Case cited: United States
v. Gourde (06 DJDAR 2886)(3/9/06). (8:14)

Consent Searches When Co-Occupants Disagree
with Jeff Rubin, Alameda County District Attorney's Office
A warrantless search of a shared dwelling for evidence over the express
refusal of consent by a physically present occupant cannot be justified as
reasonable as to the nonconsenting occupant on the basis of consent given to
the police by a different occupant. Cases cited: Georgia v. Randolph (2006)
126 S.Ct. 1515; United States v. Matlock (1974) 415 U.S. 164. (11:09)

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June 2006 Edition - Case Law Today

Miranda: Anticipatory Invocation
with Daniel McNerney, Superior Court Judge, State of California
An arrestee’s expression regarding his right to silence or counsel is not a
valid invocation of Miranda unless it is made at the time and location where
interrogation is to occur. Cases cited: People v. Nguyen (2005) 132 CA4th
350; Rhode Island v. Innis (1980) 446 U.S. 291, McNeil v. Wisconsin (1991)
501 U.S. 171. (8:10)

Detaining Suspects for Urinating in Public
with Jeff Rubin, Alameda County District Attorney's Office
Urinating on or near a commercial street in a populated area constitutes a
public nuisance in violation of Penal Code section 370. Discusses what
statutes do or do not apply to an act of public urination and the
circumstances that will or will not justify a detention for public urination.
Case and Statutes cited: People v. McDonald (2006) 137 Cal.App.4th 521;
Pen. Code §§ 370, 372, 374, 375. (9:06)

Photo Show-Ups: Does Suspect "Stand Out?"
with William Bedsworth, Justice of the Court of Appeal, State of California
The six-pack photo show-up is a valuable law enforcement tool that, when
properly used, both solves crimes and assures convictions. But, as Justice
Bedsworth explains, it has to be carefully constructed. While the law in the
area can be complex, the justice provides a “rule of thumb” which can easily
be used by officers putting together a six-pack. Case cited: People v. Carlos
(2006) DJDAR 4710. (6:16)

Seizing Computers As Indicia During Search
with Jeff Rubin, Alameda County District Attorney's Office
Officers coming across an open laptop computer during execution of a
warrant may seize it as evidence of dominion and control if the warrant
contains a general clause allowing for the seizure of “any evidence” tending
to show dominion and control. The computer may also be removed to the
station for the physical search of the computer to be conducted. Case cited:
People v. Balint (2006) 138 Cal.App.4th 200. (6:46)

Search and Seizure: Weapons Screening Checkpoints
with Daniel McNerney, Superior Court Judge, State of California
Once a person consents to proceed through a weapons screening checkpoint
and has begun the screening process, they may not withdraw their consent
and attempt to leave until security has “conclusively” determined that they
are not in possession of weapons. Cases cited: U.S. v. Davis (1973) 582 F2d
893; U.S. v. Aukai (2006) DAR 3227; Torbet v. United Airlines (2002) 298
F3d 1087. (8:05)

Anticipatory Warrants
with Jeff Rubin, Alameda County District Attorney's Office
Anticipatory search warrants do not violate the Fourth Amendment so long as
the affidavit establishes that if the triggering condition occurs there is a fair
probability that contraband or evidence of a crime will be found in a
particular place-- and there is probable cause to believe the triggering
condition will occur. The face of the warrant need not include the “triggering
condition.” A description of the place to be searched and items to be seized is
sufficient. Officers do not have to present the owner with a copy of the
warrant before conducting the search. Case cited: United States v. Grubbs
(2006) 126 S.Ct. 1494. (7:32)

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July 2006 Edition - Case Law Today

Robbery: Do You Know It When You See It?
with William Bedsworth, Justice of the Court of Appeal, State of California
This case involves an unusual robbery. Justice Bedsworth uses it to review the
basic requirements for a robbery and explains that some scenarios you might
not recognize as a 211 can qualify. Case cited: People v. Carrasco (2006)
137 Cal. App. 4th 1050. (7:21)

Interviewing Cuffed Suspect? Miranda Warnings Usually Necessary
with Jeff Rubin, Alameda County District Attorney's Office
If a suspect is kept handcuffed during a police interview, the suspect will
usually be deemed to be in custody for Miranda purposes unless the suspect
is told he/she is not under arrest and that the cuffing is only temporary and
done for safety purposes. However, for Fourth Amendment purposes, cuffing
a suspect does not necessarily convert a detention into a de facto arrest
requiring probable cause. Cases cited: People v. Pilster (2006) 138
Cal.App.4th 1395; People v. Celis (2004) 33 Cal.4th 667. (9:51)

Vehicle Search: Rental Cars
with Daniel McNerney, Superior Court Judge, State of California
The fact that a person is prohibited by the Rental Agreement from operating
a vehicle does not necessarily mean he has no reasonable expectation of
privacy in that vehicle. Cases cited: U.S. v. Jones (1960) 362 U.S. 257; U.S.
v. Thomas (2006) DAR 6029. (9:10)

Exigent Circumstances Entries: Subjective Intent Irrelevant
with Jeff Rubin, Alameda County District Attorney's Office
Officers may enter a home without a warrant when they have an objectively
reasonable basis for believing an occupant is seriously injured or imminently
threatened with injury regardless of the subjective motivation of the officers
making entry. Case cited: Brigham City, Utah v. Stuart (2006) 126 S.Ct.
1943. (7:23)

Duty to Report Crimes
with William Bedsworth, Justice of the Court of Appeal, State of California
Bryan Pinto was terminated from his job with the Visalia Police Department
for failing to report his knowledge of a sexual relationship between a minor
and an adult and for a lie he told during the investigation of this failure to
report. Eventually his termination was vacated, but it took years, money,
and much suffering. Justice Bedsworth discusses the laws that applied to
Officer Pinto’s situation and how they affect other peace officers. Case and
statute cited: Pinto v. City of Visalia (2006) 43 Cal. Rptr. 3d 613; Penal Code
§11166. (10:53)

Exigent Circumstances Entries: To Arrest DUI Suspects
with Jeff Rubin, Alameda County District Attorney's Office
Police may, in certain circumstances, make a warrantless entry into the home
of a suspect they have probable cause to believe was recently DUI in order to
arrest the suspect and prevent the dissipation of blood-alcohol evidence
under the exigent circumstance exception. Cases cited: People v. Thompson
(2006) 43 Cal.Rptr.3d 750. (12:05)

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August 2006 Edition - Case Law Today

Miranda: Advise First, Ask Questions Later
with Daniel McNerney, Superior Court Judge, State of California
If a suspect is given Miranda but is not questioned, the suspect’s efforts to
initiate a conversation about the crime will constitute an implied waiver.
Cases cited: Rhode Island v. Innis (1980) 446 U.S. 291; Oregon v. Bradshaw
(1983) 462 U.S. 1039; Williams v. Stewart (2006) DAR 2681; Brewer V.
Williams (1977) 430 U.S. 387. (9:30)

Parole Searches Don't Require Reasonable Suspicion
with Jeff Rubin, Alameda County District Attorney's Office
Police may conduct a search or seizure of a parolee without reasonable
suspicion so long as the search is not done for an arbitrary, capricious or
harassing purpose and the officer is aware of the parole search clause before
conducting the search or seizure. Case/statute cited: Samson v. California
(2006) 2006 WL 1666974; Pen. Code § 3056. (3:50)

Visual Cavity Searches
with William Bedsworth, Justice of the Court of Appeal, State of California
In this case, the city of Ventura’s jail policy regarding visual body cavity
searches was held unconstitutional. While the case primarily speaks to jailers,
Justice Bedsworth extracts from it some considerations that are important
with regard to all searches. Case cited: Way v. County of Ventura (2006
DJDAR 4722 4/21/06). (8:28)

Medical Marijuana Search Warrants
with Jeff Rubin, Alameda County District Attorney's Office
A warrant based on information that a suspect is openly growing a few
marijuana plants is devoid of probable cause where the suspect alerts law
enforcement that the cultivation is being done pursuant to a recommendation
from a doctor (whose name and number are provided) but the police fail to
verify the recommendation and there is no other evidence suggesting more
marijuana is being grown. Case/statute cited: People v. Russell (2006) 138
Cal.App.4th 723; Health & Saf. Code, § 11362.5. (8:55)

Vehicle Stops: Pretext Stop Made By a Different Officer
with Daniel McNerney, Superior Court Judge, State of California
An officer may initiate a traffic stop based on observations of a moving
violation made by another officer. Cases cited: Whren v. U.S. (1996) U.S.
806; U.S. v. Guerena (2006) DAR 4903. (7:03)

Duty of Medical Care to Injured Suspects
with Jeff Rubin, Alameda County District Attorney's Office
Police have a constitutional duty to seek medical attention for suspects
injured during an arrest. However, this duty is met when police either
promptly summon the necessary medical help or take the injured person to a
hospital. If this is done, an officer has acted reasonably under the Fourth
Amendment even if the officer does not perform a medical procedure (such
as giving CPR) that may have been the most effective treatment. Cases cited:
Tatum v. City and County of San Francisco (9th Cir. 2006) 441 F.3d 1090. (11:44)

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September 2006 Edition - Case Law Today

Free Speech on Campus
with William Bedsworth, Justice of the Court of Appeal, State of California
Jonathan O’Toole and his group wanted to protest at Mesa College in San
Diego (a public community college). When campus police told them they
needed a permit, O’Toole insisted they were wrong, cited statutes that
established his right to speak on campus, and refused to leave. He was
arrested, but charges were never filed– largely because he was right. Justice
Bedsworth explains the rules on campus free speech, the California Bane Act,
and the rules applying to officers under these circumstances. Case cited:
O’Toole v. Superior Court of San Diego County (2006 DJDAR 7414)(June 15,
2006). (7:03)

New Rules on Admission or Hearsay
with Jeff Rubin, Alameda County District Attorney's Office
Explains when police can expect that statements made to law enforcement
during 911 calls or when police first make contact with witnesses to a crime
will be admissible in court when the person who made the statement is not
available to testify. Cases cited: Davis v. Washington (2006) 126 S.Ct. 2266;
Crawford v. Washington (2004) 541 U.S. 36. (10:51)

Knock-Notice: Failure to Comply Does Not Require Suppression
with Daniel McNerney, Superior Court Judge, State of California
Although “Knock-Notice” is founded in the 4th Amendment prohibition
against unreasonable search and seizure, the U.S. Supreme Court in this case
holds that failure to comply with knock-notice does not require suppression
of evidence seized pursuant to a lawful search warrant. Case cited: Hudson v.
Michigan (2006) DAR 7469. (7:00)

Advising Foreign Nationals of Rights
with Jeff Rubin, Alameda County District Attorney's Office
The failure of law enforcement to inform foreign nationals of their right
(under the Vienna Convention) to have their consulate notified of their arrest
or detention does not require the suppression of statements made by foreign
nationals to the police. Failure to provide this information to a foreign
national may, however, play a role in assessing whether a statement made
to the police is voluntary. Case cited: Sanchez-Llamas v. Oregon (2006) 126
S.Ct. 2669. (5:14)

Stops for Missing Front Plate
with William Bedsworth, Justice of the Court of Appeal, State of California
Justice Bedsworth discusses a case in which the California Supreme Court
upheld a stop for missing front plate. The case has some interesting twists,
however, and Justice Bedsworth also discusses whether you can make a stop
for this or for expired registration tags where the vehicle is properly
displaying what appears to be a current temporary operating permit.
Case cited: People v. Saunders (June 29, 2006). (8:51)

Detentions for Crossing Outside the Crosswalk
with Jeff Rubin, Alameda County District Attorney's Office
Police may only stop pedestrians for crossing outside the crosswalk where
either the road being crossed is between adjacent intersections controlled by
traffic control signal devices or by police officers, or the pedestrian fails to
yield the right-of-way to vehicles on the road which are near enough to
constitute an immediate hazard. Case/statutes cited: People v. Ramirez
(2006) 140 Cal.App.4th 837; Vehicle Code §§ 21954, 21955. (5:39)

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October 2006 Edition - Case Law Today

Vehicle Stops: Is the Passenger Also Detained?
with Daniel McNerney, Superior Court Judge, State of California
In this case, the California Supreme Court holds that the passenger in a
vehicle stopped by police is not necessarily detained unless the officer takes
additional action with the passenger to indicate that he is also a subject of the
investigation of the officer’s authority. Case cited: People v. Brendlin (2006)
38 C4th 1107. (7:22)

Post-Arrest Parole/Probation Searches
with Jeff Rubin, Alameda County District Attorney's Office
A parole search may be conducted, even after the parolee has been
incarcerated on a parole hold, up until the time the parolee’s parole is
formally revoked. The rule is the same when it comes to probationers. Case
cited: People v. Hunter (2006) 140 Cal.App.4th 1147. (6:41)

Conducting a Consent Search
with William Bedsworth, Justice of the Court of Appeal, State of California
A consent search is always limited by the purpose –if any is expressed– for
which the search is granted. Consent can be withdrawn at any time during
the search, in which case, the search must be immediately terminated. But in
this case, a consent search was invalidated not because consent was
withdrawn, but because the police put the person who gave consent in a
situation in which he could not effectively exercise his right to withdraw
consent. Case cited: United States v. McWeeney (2006) DJDAR 9551 (July
24, 2006) (6:08)

Tainted Statements
with Jeff Rubin, Alameda County District Attorney's Office
Generally, if police obtain an involuntary statement from a suspect,
statements made after the involuntary statement will be presumed to be
tainted by the first statement and thus also suppressible. This rule can hold
true even if the second statement is made to a private individual. However,
if there is an intervening act that breaks the connection between the first and
second statement (such as when the suspect initiates a request to speak to a
family member on his own), the second statement may be admissible. Cases
cited: People v. Hogan (1982) 31 Cal.3d 815; People v. Terrell (2006) 141
Cal.App.4th 1371. (7:17)

P.C. to Arrest: The Case of the Missing Oscars
with Daniel McNerney, Superior Court Judge, State of California
Discusses two issues: warrantless arrest of a suspect at his residence, and
probable cause to arrest based on hearsay. Cases cited: Hart v. Parks (2006)
DAR 7693; Payton v. New York (1980) 445 U.S. 573; U.S. v. Alazzawy
(1985) 784 F2d 890. (8:21)

Searching Workplace Computers
with Jeff Rubin, Alameda County District Attorney's Office
A suspect has no expectation of privacy in a workplace computer (i.e., the
suspect cannot challenge the search of the computer) where the company
gives the police permission to search the computer and the company’s
computer policy included routine monitoring, a right of access to the
computer by other employees, and a prohibition against private use by its
employees. Case cited: United States v. Ziegler (9th Cir. 2006) 456 F.3d
1138. (9:14)

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November 2006 Edition - Case Law Today

DUI Stops Based on Anonymous Tips
with William Bedsworth, Justice of the Court of Appeal, State of California
In a very important decision, the California Supreme Court has upheld a
vehicle stop based upon an anonymous tip. Justice Bedsworth explains the
application and ramification of the case. Cases cited: People v. Wells (2006)
DJDAR 8181; Florida v. J.L. (2000) 529 U.S. 266. (8:43)

Assault: Is Pointing A Firearm Enough?
with Jeff Rubin, Alameda County District Attorney's Office
When a suspect points a loaded firearm in the direction of where he
anticipates a pursuing officer will appear, but the officer comes up behind the
suspect instead, there is insufficient evidence to establish an assault on a
peace officer. However, that same evidence can support an attempted
murder of a peace officer charge. This video discusses cases that define what
will or will not constitute an assault with a firearm. Cases/statutes cited:
People v. Chance (2006) 141 Cal.App.4th 618; People v. Raviart (2001) 93
Cal.App.4th 258; Pen. Code § 245(d)(1). (18:03)

Search and Seizure: Computer Searches
with Daniel McNerney, Superior Court Judge, State of California
When police anticipate that computers and their storage media may need to
be taken to a different location to be searched due to technical or logistical
issues, they should include that information in the search warrant affidavit.
Cases cited: U.S. v. Hill (2006) DJDAR 10632; U.S. v. Hay (2000) 231 F3d
630. (7:23)

Patdowns: When Not Okay
with Jeff Rubin, Alameda County District Attorney's Office
An officer’s belief that persons being questioned about a crime can
sometimes become confrontational is not enough by itself to justify a
patsearch where no other facts exist indicating the suspect is armed or
dangerous. Case cited: United States v. Flatter (9th Cir. 2006) 456 F.3d
1154. (5:44)

Flight From Police Vehicle: CVC §2800
with William Bedsworth, Justice of the Court of Appeal, State of California
So you hit your red lights and siren and instead of stopping, your suspect
rabbits. You chase him for miles and plan to charge him with violation of CVC
§2800.1 – attempting to elude a peace officer. But do you have a case?
Justice Bedsworth explains you have to be more distinctive than a red light
and siren and he explains the Supreme Court’s Hudson decision which makes
it all…well…something less than crystal clear. Case cited: People v. Hudson
(2006) DJDAR 76080 (June 20, 2006). (6:53)

Answering Phone Calls After Consensual Entry
with Jeff Rubin, Alameda County District Attorney's Office
Officers can enter a home based on the consent of a guest in a home when
the guest answers the door, the occupant is absent, and entry is just into an
area where a visitor would normally be received. Such consent would not
usually give officers the right to answer incoming phone calls, but they may
do so if they are trying to track down a suspect who just committed a crime
and there is probable cause to believe the caller is the suspect. Case cited:
People v. Ledesma (2006) 39 Cal.4th 641. (7:29)

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December 2006 Edition - Case Law Today

S&S: School Pat-downs
with Daniel McNerney, Superior Court Judge, State of California
Pat-downs of persons for weapons on school grounds may be conducted
without a showing of reasonable suspicion that the subject is armed or
dangerous. Cases cited: In re Randy G. (2001) 26 C4 556; In re William G.
(1985) 40 C3 550; People v. Jose Y.; (2006) 141 CA4 748; In re Latasha W.
(1998) 60 CA4 1524. (5:32)

Section 12020: Required State of Mind
with Jeff Rubin, Alameda County District Attorney's Office
To prove a violation of Penal Code section 12020, it must be shown that the
suspect knew of the existence of the weapon as well as the characteristics of
the weapon that make it illegal. When it comes to short-barreled rifles, for
instance, it must be shown the suspect knew the rifle was unusually short
even though it is not necessary to show the suspect knew it was illegal or its
exact dimensions. Cases/statutes cited: People v. King (2006) 38 Cal.4th
617; People v. Taylor (2001) 93 Cal.App.4th 933; Pen. Code § 12020.
(6:56)

Protective Sweeps: Outside Arrest
with William Bedsworth, Justice of the Court of Appeal, State of California
It has long been the law that police making an arrest inside a residence can
conduct a brief search to guarantee their safety– to make sure there is no
one else in the residence who could do them harm. It has also been the law,
though less well-known, that police making an arrest outside a residence can
make a “protective sweep” search to make sure no one in the residence is a
threat. Justice Bedsworth explains the rules that apply to a protective sweep
of the inside of a residence after an arrest outside it. Case cited: United
States v. Paopao (2006 DJDAR 13706 October 11, 2006). (7:19)

Detentions Based on Parking Violations Okay
with Jeff Rubin, Alameda County District Attorney's Office
Police officers may detain a suspect based on reasonable suspicion the
suspect has committed a parking violation (such as parking in a no-parking
zone). Case/statute cited: United States v. Choudry (9th Cir. 2006) 461 F.3d
1097; Veh. Code § 22651(n). (3:47)

S&S: Public Access Checkpoints
with Daniel McNerney, Superior Court Judge, State of California
Information checkpoints operated by law enforcement at entrances to parks,
lakes or recreational areas may be used to briefly stop and contact motorists,
so long as their “primary purpose” is not crime control. Cases cited:
Michigan State Police v. Sitz (1990) 496 U.S. 444; Indianapolis v. Edmond
(2000) 531 U.S. 32; U.S. v. Faulkner (2006) DAR 7365. (8:08)

Miranda Rule and Agreements to Listen
with Jeff Rubin, Alameda County District Attorney's Office
A suspect who, after being informed of his Miranda rights, does not
specifically waive his rights but “agrees to listen” will not be deemed to have
invoked his Miranda rights. Also, asking a suspect for his gang name and
moniker before informing him of his Miranda rights is proper when such
questioning is normally attendant to arrest and custody. Case cited: United
States v. Washington (9th Cir. 2006) 462 F.3d 1124. (8:35)

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