Case Law Today Series

Titles

January 2005 Edition - Case Law Today

Photo Showups: The Basics
with William Bedsworth, Justice of the Court of Appeal, State of California
Justice Bedsworth uses the case of People v. Shabazz to explain the basic
requirements for putting together a photo array for a photographic showup.
Cases cited: People v. Shabazz (2004) 118 Cal. App. 4th 1458; People v.
Brandon (1995) 32 Cal. App. 4th 1033. (10:12)

Probable Cause Arrests: Objective Standard Rules
with Jeff Rubin, Alameda County District Attorney's Office
A warrantless arrest is lawful so long as there are objective facts supporting
probable cause to arrest for an offense. It is not necessary that the offense
for which the officer subjectively believed he was formally arresting the
suspect is the offense for which the known facts provided probable cause, nor
is it required that the offense for which was suspect was formally arrested be
“closely related” to the offense for which probable cause existed. Case cited:
Devenpeck v. Alford (2004) DJDAR 14750. (8:54)

Pat-Downs: Refusal May Lead to P.C. §148 Arrest
with Daniel McNerney, Superior Court Judge, State of California
Police may pat-down a detainee for weapons if they have reasonable
suspicion that he/she is armed and dangerous. A detainee who refuses or
resists a lawful pat-down is subject to arrest for P.C. §148. Case cited: People
v. Lopez (2004) 119 CA4 132. (6:14)

Hunch Doesn't Equal Reasonable Suspicion to Stop
with Jeff Rubin, Alameda County District Attorney's Office
Where police received information from a student that unknown Mexican
gang members were threatening to come by his apartment the next morning,
police did not have reasonable suspicion, four days later, to stop a car with
two Hispanic males just because they both looked in the general direction of
the student’s apartment complex as they drove past it. Case cited: People v.
Durazo (2004) 21 Cal.Rptr.3d 516. (5:56)

Penal Code §71: Do You Know It?
with William Bedsworth, Justice of the Court of Appeal, State of California
Little-known Penal Code §71 makes it illegal to threaten a public employee or
school employee (private or public) in order to cause that person not to
perform his/her duties. This a wobbler felony which all police officers should
be familiar with. Justice Bedsworth uses the case of In re Ernesto H. to
explain the workings of the statute. Case cited: In re Ernesto H. (2004) Daily
Journal DAR 14786. (7:07)

Searches of In-Custody Parolee's Residence
with Jeff Rubin, Alameda County District Attorney's Office
Although reasonable suspicion is not required to do a parole search, there
must be probable cause to believe the parolee resides at the place searched.
No such probable cause existed where it was easy for officers to ascertain
parolee had been in custody for six weeks before search occurred. Also, the
manner in which the search is conducted must be reasonable or the search
will be unconstitutional. Case cited: Motley v. Parks (2004) 123 Cal.App.4th
144. (7:07)

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February 2005 Edition - Case Law Today

S&S: More On Anonymous Tips
with Daniel McNerney, Superior Court Judge, State of California
In order for police to detain a suspect based on an anonymous tip, the tipster
must indicate that they have personal knowledge of the information given to
police, and the information must predict future criminal activities that can be
corroborated by police. Cases cited: Florida v. J.L. (2000) 529 U.S. 266;
People v. Jordan (2004) 121 CA4 544. (9:41)

Search of Vehicle Incident to Arrest
with Jeff Rubin, Alameda County District Attorney's Office
As long as there is probable cause to make an arrest, and the search is
conducted “roughly contemporaneously” with the arrest, a search incident to
arrest (including a search of a vehicle) is permitted-- regardless of whether
the search occurs before or after the formal arrest. Cases cited: Chimel v.
California (1969) 395 U.S. 752; New York v. Belton (1981) 453 U.S. 454;
United States v. Smith (9th Cir. 2004) 389 F.3d 944; United States v.
McLaughlin (9th Cir. 1999) 170 F.3d 889; United States v. Hudson (9th Cir.
1996) 100 F.3d 1409. (6:56)

Security Camera Photos and Lineups or Showups
with William Bedsworth, Justice of the Court of Appeal, State of California
In this case, the Ninth Circuit Court of Appeals dealt with a bank robbery in
which police showed witnesses security camera photos of the robber before
showing them a photo showing of suspects. The court held this was a
permissible and reasonable law enforcement technique. Justice Bedsworth
explains when you can show photos of the perpetration to witnesses prior to
lineups or showups. Case cited: United States v. Beck (2005) DJDAR 162.
(5:42)

Unreasonable Delay in Taking Arrestee to Magistrate
with Jeff Rubin, Alameda County District Attorney's Office
Where an arrestee is brought in for a traffic violation but no attempt is made
to book or arraign him on that violation and instead he is detained for 16
hours while being interviewed about a murder case for which probable cause
to arrest him is lacking, there is a Fourth Amendment violation. Plus, a
suspect with subnormal intelligence can still give a knowing and intelligent
Miranda waiver. Cases cited: County of Riverside v. McLaughlin (1991) 500
U.S. 44; People v. Jenkins (2004) 122 Cal.App.4th 1160. (14:09)

Search and Seizure: Protective Sweeps
with Daniel McNerney, Superior Court Judge, State of California
In order to enter a home to conduct a “protective sweep,” police must have
reasonable suspicion that there is a person present in the house posing a
danger to officer safety. Cases cited: Maryland v. Buie (1990) 494 U.S. 325;
U.S. v. Gould (2004) 364 F3d 578; U.S. v. Daoust (1990) 916 F2d 757; U.S.
v. Wilson (2001) 306 F3d 231; State v. Revenaugh (1999) 173 Idaho 774;
People v. Celis (2004) 33 C4 667. (7:54)

Statements Taken After Illegal Arrest
with Jeff Rubin, Alameda County District Attorney's Office
Although a statement taken during an unreasonably delay in bringing an
arrestee before a magistrate may be suppressed, if the suspect is released
from custody for a period of time and then voluntarily returns to give another
statement, the second statement may still be admissible. Plus, it is
permissible to place two suspects together in a jail cell and secretly record
them. Case cited: People v. Jenkins (2004) 122 Cal.App.4th 1160. (10:57)

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March 2005 Edition - Case Law Today

What Is Not a Crime: Videotaping Police
with William Bedsworth, Justice of the Court of Appeal, State of California
There is no reasonable expectation of privacy in things you say on the police
radio. And the actions you take in public are likewise public. You cannot stop
anyone from videotaping an arrest or police radio dispatch. You can make it
more difficult (by rolling up your car windows, for example) but it is not illegal
and you cannot prohibit it. Justice Bedsworth explains this, using the
cautionary tale of a small-town Washington police chief who got sued for this.
Case cited: Johnson v. Hawe (2004) (September 1, 2004) DJDAR 10814.
(7:00)

Searching Hatchback Cargo Area Incident to Arrest
with Jeff Rubin, Alameda County District Attorney's Office
The cargo portion of a hatchback vehicle is part of the “passenger
compartment” for purposes of the Belton rule allowing search of the
passenger compartment of a vehicle incident to arrest, even if it is covered.
Other issues arising in the case of Mayo are also discussed with the
investigating officer. Cases cited: United States v. Mayo (2005) DJDAR 604
New York v. Belton (1981) 453 U.S. 454. (14:47)

Parole/Probation Searches: Areas of Joint Access
with Daniel McNerney, Superior Court Judge, State of California
An officer’s knowledge of the search and seizure condition of a person’s
parole or probation allows the officer to search all areas of the residence to
which the parolee/probationer reasonably appears to have normal access to.
Cases cited: People v. Woods (1999) 21 CA4 668; People v. Johnson (1980)
105 CA3 884; People v. Pleasant (2004) 123 CA4 194. (7:57)

Ambiguous Requests for Counsel
with Jeff Rubin, Alameda County District Attorney's Office
Once a suspect has asserted his/her right to counsel during custodial
interrogation, the interrogation must cease. However, if the request for
counsel is ambiguous or equivocal, officers are not required to stop their
interrogation. Cases cited: Davis v. United States (1994) 512 U.S. 452; People
v. Gonzalez (2005) 34 Cal.4th 1111. (8:10)

Search of a Car Incident to Arrest of Occupant
with William Bedsworth, Justice of the Court of Appeal, State of California
Justice Bedsworth discusses one of those rare and wonderful bright line rules:
search of an automobile incident to arrest. The law is – at least for now –
very clear about what you can and cannot search incident to the arrest of a
driver. As this case makes clear, you can search a car incident to an arrest
even if you arrested your suspect outside the car and even if there could be
no evidence of the crime in the car. Justice Bedsworth explains how this can
be true. Cases cited: United States v. Osife (2004) DJDAR 2058; Chimel v.
California (1969) 395 U.S. 752. (7:22)

Dog Sniffs Are Not Searches
with Jeff Rubin, Alameda County District Attorney's Office
No reasonable suspicion is required before having a narcotics sniffing dog
sniff around the exterior of a vehicle during an otherwise lawful traffic stop,
so long as use of the dog does not unreasonably prolong the stop, because
such sniffing does not violate a privacy right protected by the Fourth
Amendment (i.e., it is not a search). Case cited: Illinois v. Caballes (2005)
125 S.Ct. 834. (4:29)

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April 2005 Edition - Case Law Today

Search & Seizure: Expectation of Privacy in Room Obtained by Fraud
with Daniel McNerney, Superior Court Judge, State of California
Persons have a reasonable expectation of privacy in their hotel room.
However, if the room is obtained by fraud, that expectation is no longer
reasonable. Cases cited: U.S. v. Cunag- (2004) 12422; Rakas v. Illinois
(1978) 439 U.S. 128. (8:46)

Seizing Incriminating Evidence During Frisk
with Jeff Rubin, Alameda County District Attorney's Office
Under the “plain-feel” doctrine, an officer may seize an item during a frisk
that the officer immediately recognizes as being of an incriminating character
–even if the item is not a weapon or contraband. However, there must be
probable cause to believe the item is evidence of a crime at the moment of
the search. Cases cited: In re Lennies H. (2005) 25 Cal.Rptr.3d 13;
Minnesota v. Dickerson (1993) 508 U.S. 366. (11:00)

CVC §2800-2(a): Felony Evasion
with William Bedsworth, Justice of the Court of Appeal, State of California
California Vehicle Code §2800-2(a) criminalizes evasion of a pursuing police
officer with “willful or wanton disregard for the safety of persons or property.”
Section (b) of that statute provides that proof of three or more “one-point”
violations constitutes willful or wanton disregard for safety. Justice Bedsworth
examines the statute in the light of Diaz, which sets out an interesting
limitation or what constitutes a one-point violation for purposes of this law.
Case cited: People v. Diaz (2005 DJDAR 1033)(January 28, 2005). (6:35)

The Official Channels/Collective Information Rule
with Jeff Rubin, Alameda County District Attorney's Office
Officers may reasonably rely on information received from other members of
law enforcement in making detentions, arrests, and searches. However, this
does not mean officers may justify actions based on information known to
other members of law enforcement which have not been communicated. This
video explores the difference between these two concepts. (4:58)

Knock-Notice: Do You Have to "Knock"?
with Daniel McNerney, Superior Court Judge, State of California
The four key elements to the “Knock-notice” rule are: 1) Announce your
presence, 2) Advise occupants of your purpose, 3) Request/demand entry,
and 4) Give occupants sufficient time to respond before forcing entry. Cases
cited: U.S. v. Combs (2005) DAR 349; U.S. v. Spikes (1998) 158 F3d 925.
(8:05)

Detaining and Questioning Occupants While Executing Warrant
with Jeff Rubin, Alameda County District Attorney's Office
Police serving a warrant for deadly weapons and evidence of gang
membership may detain occupants in handcuffs; no additional reasonable
suspicion the occupants are dangerous or are involved in criminal activity is
required. The occupants may be asked questions about their identity,
including their immigration status, as a matter of course. Cases cited:
Muehler v. Mena (2005) DJDAR 3332; Michigan v. Summer (1981) 452 U.S.
692. (9:51)

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May 2005 Edition - Case Law Today

Automobile Repossession: Your Job?
with William Bedsworth, Justice of the Court of Appeal, State of California
The case of Meyers v. Rovetta describes the kind of ugly mess police are
called upon to sort out every day. It’s a 3 a.m. auto repossession that turns
into a free-for-all between the repo-man, the new mother who owns the car
and the elderly mother of the car owner. Everybody gets scratched, bruised,
and angry and then the cops are called to sort it all out. Justice Bedsworth
explains what police can and cannot do in an automobile repossession
situation. Case cited: Meyers v. Rovetta (2005 Daily Journal DAR 2923).
(9:12)

Exigent Circumstances Searches Where Child Missing
with Jeff Rubin, Alameda County District Attorney's Office
This video discusses the factors that went into upholding various searches
conducted by the police of a suspected child killer’s apartment and car under
the exigent circumstances exception. Entries based on implied and express
consent are also discussed. Case cited: People v. Panah (2005) 35 Cal.4th
395. (16:45)

Detention: Does Transporting to New Location Constitute An Arrest?
with Daniel McNerney, Superior Court Judge, State of California
Officers may transport a detainee to a different location when reasonably
necessary to complete the purpose of the detention without elevating the
contact to an arrest. Cases cited: In re Carlos M. (1990) 220 CA3 372; Florida
v. Royer (1983) 460 U.S. 491; Gallegos v. City of Los Angeles (2002) 308 F3d
987; U.S. v. Charley (2005) DAR 1455. (6:50)

Implied Miranda Waivers and Spontaneous Statements
with Jeff Rubin, Alameda County District Attorney's Office
Although it is better to get an express waiver of Miranda rights, a valid waiver
may be implied where the suspect freely speaks with the officers after being
advised of his rights. Spontaneous statements made by a suspect in
response to police actions “normally attendant to arrest and custody,” such as
having the suspect identified, are admissible even absent a Miranda warning.
Case cited: United States v. Younger (9th Cir. 2005) 398 F.3d 1179. (7:35)

Search of Clothing in a Public Place
with William Bedsworth, Justice of the Court of Appeal, State of California
People v. Juan involves an unusual issue: Can an officer search clothing left
in a public place? This is not the type of thing that comes up a lot, but it
came up in Orange County just a few weeks ago, and Justice Bedsworth
discusses that case and People v. Juan in explaining that the answer is, “Yes,
you can search clothing left behind in a public place.” Case cited: People v.
Juan (1985) 175 Cal. App. 3d 1065. (6:31)

Overzealous Seizure of Indicia Can Be Unconstitutional
with Jeff Rubin, Alameda County District Attorney's Office
Seizing motorcycles, a mailbox, a refrigerator door and a cement portion of a
driveway (necessitating significant property destruction) as indicia of gang
membership was an unreasonable seizure where numerous other items of
indicia had been seized and the evidence would only be used to support a
gang enhancement –even though the warrant allowed for the seizure of
“any” evidence of gang membership. Case cited: San Jose Charter of the
Hells Angels Motorcycle Club v. City of San Jose (2005) 402 F.3d 962.
(9:26)

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June 2005 Edition - Case Law Today

Miranda: Re-Advisement After Break in Interrogation
with Daniel McNerney, Superior Court Judge, State of California
Re-advisement of Miranda rights are generally not required when
interrogation is renewed after break or recess. Cases cited: Guam v. Dela
Pena (1995) 72 F3d 767; U.S. v. Andraverde (1995) 64 F3d 1305; Puplampu
v. U.S. (1970) 442 F2d 870; U.S. v. Rodriguez (2005) DAR 2624. (6:48)

Killing Dogs During Service of Warrant
with Jeff Rubin, Alameda County District Attorney's Office
Officers violated the Fourth Amendment by killing homeowners’ dogs during
the service of a warrant where the officers knew dogs would be present long
before service of the warrant and inadequate plans were made for dealing
with the dogs in advance. Case cited: San Jose Charter of the Hells Angels
Motorcycle Club v. City of San Jose (2005) 402 F.3d 962. (11:38)

Search and Seizure: Expectation of Privacy in Property By Fraud or Theft
with Daniel McNerney, Superior Court Judge, State of California
Although criminals may harbor an expectation of privacy in property obtained
by theft or fraud, such expectation is not “reasonable.” Cases cited: Smith v.
Maryland (1979) 442 U.S. 735; Rakas v. Illinois (1978) 439 U.S. 128; U.S. v.
Cunag (2004) 386 F3d 888; U.S. v. Caymen (2005) 404 F3d 1196. (6:40)

Warrantless Searches of Commercial Businesses
with Jeff Rubin, Alameda County District Attorney's Office
Although searches of commercial businesses generally require a warrant,
there are two exceptions: the “open to the public” exception and the “closely
regulated industry” exception (aka the “administrative search” exception).
This video focuses on a recent case involving a search done pursuant to
Vehicle Code section 2805 in order to illustrate the differences between these
exceptions. Cases/Statutes cited: People v. Potter (2005) 128 Cal.App.4th
611; People v. Roman (1991) 227 Cal.App.3d 674; People v. Calvert (1993)
18 Cal.App.4th 1820; Veh. Code, § 2805. (8:58)

Miranda: Unambiguous Invocation
with Daniel McNerney, Superior Court Judge, State of California
A suspect who invokes his/her Miranda right to silence or counsel must do so
in a “clear and unambiguous” manner. Cases cited: U.S. v. Davis (1994) 512
U.S. 452; People v. Wash (1993) 6 CA4 215; In re Joe R. (1980) 27 C3d
1213; People v. Stitley (2005) 35 C4th 514; People v. Turnage (1975) 45 CA
3d 237. (8:52)

Emergency Entry to Investigate Domestic Violence
with Jeff Rubin, Alameda County District Attorney's Office
Officers may enter a home under the “emergency exception” where they
have reasonable grounds to believe an emergency is at hand, their
immediate help is needed to protect life or property, the officers’ intent is
primarily motivated by the emergency, and there is probable cause to believe
the place entered is associated with the emergency. The exception was held
to apply where police responded to an interrupted 911 call regarding an “outof-
control male" at a home where domestic violence had previously occurred,
a female was outside crying but not injured, and somebody was yelling inside
the house. Case cited: United States v. Martinez (9th Cir. 2005) DJDAR 5611.
(6:53)

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July 2005 Edition - Case Law Today

Arresting Foreign Nationals
with William Bedsworth, Justice of the Court of Appeal, State of California
Penal Code §834c requires that any time a known or suspected foreign national
is arrested or detained for more than two hours, he/she must be advised of the
right to speak to an official from the consulate of his or her country. If the
arrestee chooses to exercise that right, the police must notify the consulate and
“ensure that the arrestee is allowed to communicate with, correspond with, and
be visited by a consular officer of his or her country.” And 56 countries require
notification even if their foreign national requests that they not be notified.
Justice Bedsworth discusses the statute and how to comply with it. Statutes cited:
Penal Code §834c. (7:00)

The Latest on "Medical Marijuana"
with Jeff Rubin, Alameda County District Attorney's Office
The United States Supreme Court has held that even where a person cultivates
and possesses marijuana solely in California for his or her own personal medical
use, such cultivation and possession still remains illegal under federal law. The
video also covers the latest information on the return or destruction of “medical”
marijuana seized by local law enforcement. Case/Statutes cited: Gonzales v.
Raich (2005) 125 S.Ct. 2195; People v. Frazier (2005) 128 Cal.App.4th 807;
Chavez v. Superior Court (2004)123 Cal.App.4th 104; Health & Saf. Code, §§
11362.5-11362.83. (9:00)

Vehicle Stops: Information-Seeking Checkpoints
with Daniel McNerney, Superior Court Judge, State of California
Police may lawfully establish “information-seeking” checkpoints to contact
vehicles in an effort to obtain information to assist in a criminal investigation.
Cases/Statutes cited: United States v. Martinez (1976) 428 U.S. 543; Michigan
State Police v. Sitz (1990) 496 U.S. 444; Indianapolis v. Edmonds (2000) 531
U.S. 32; Illinois v. Lister (2004) 540 U.S. 419. (7:13)

Threshold Arrests
with Jeff Rubin, Alameda County District Attorney's Office
Although the general rule is that police may not enter a residence to make a
warrantless arrest, there is an exception made if the person is at the threshold of
the door, or voluntarily opens the door and appears at the threshold. This video
discusses when the exception does or does not apply. Cases/Statutes cited: United
States v. Quaempts (9th Cir. 2005) DJDAR 6248; Payton v. New York (1980) 445
U.S. 573; United States v. Santana (1976) 427 U.S. 38; United States v.
Vaneaton (9th Cir. 1995) 49 F.3d 1423. (7:01)

Plain Sight: Is Plain Shape Enough?
with William Bedsworth, Justice of the Court of Appeal, State of California
A doctrine closely related to the concept that seizing what is in plain sight does
not violate the Fourth Amendment is what has been known as the “plain shape
rule.” Essentially, the courts have held that there is no legitimate expectation of
privacy in a container whose SHAPE discloses its contents. The Ninth Circuit,
however, has imposed an interesting restriction on this rule that police need to
know about. Cases/Statutes cited: United States v. Gust 405 F3d 797 (9th Cir.
2005). (7:52)

Section 11383 Requires Personal Intent to Manufacture
with Jeff Rubin, Alameda County District Attorney's Office
To prove a violation of Health and Safety Code section 11383, it is not enough to
show the suspect in possession of the chemicals knew they were going to be used
in the manufacture of methamphetamine by someone else. It must be shown the
suspect possessing the chemicals personally intended to participate in the
manufacture of methamphetamine. Case/Statute cited: People v. Perez 2005
DJDAR 6457; Health & Saf. Code, § 11383. (7:55)

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August 2005 Edition - Case Law Today

Miranda: Interviewing Co-Defendants
with Daniel McNerney, Superior Court Judge, State of California
When two or more suspects are jointly interviewed under Miranda, and each
adopts as true and correct the statements made by their co-defendants, those
statements may be introduced against all defendants at a joint trial. Cases/
Statutes cited: People v. Castille (2005) 129 CA4 836; Crawford v.
Washington (2004) 541 U.S. 36; People v. Combs (2004) 34 C4 821.
(7:36)

Grounds to Detain for Exhibition of Speed
with Jeff Rubin, Alameda County District Attorney's Office
An officer has reasonable suspicion to detain a suspect for “exhibition of
speed” where the officer sees the suspect accelerate and lose traction for
approximately 20-25 feet. Plus, state university police officers have
statewide authority to detain and arrest traffic violators. Case/Statute cited:
Brierton v. DMV (2005) DJDAR 7360; Veh. Code, § 23109(c). (3:53)

Wiretaps and Good Faith
with William Bedsworth, Justice of the Court of Appeal, State of California
One of the most demanding areas of the law for police officers is the
California Wiretap Act (Penal Code §§629.50 et seq). While potentially very
rewarding, wiretaps require strict adherence to very technical requirements –
even more technical than search warrants. Justice Bedsworth discusses the
basics of the wiretap law and explains why, if the tap is not properly
obtained, your good faith will not save the evidence. Cases/Statutes cited:
People v. Jackson (2005) 129 Cal App 4th 129; Penal Code §§629.50 et seq.
(6:35)

Asking for Consent During a Traffic Stop
with Jeff Rubin, Alameda County District Attorney's Office
As long as a traffic stop is not unreasonably prolonged, an officer does not
need reasonable suspicion of criminal activity in order to ask for consent to
search; and a traffic stop in which the officer sought consent to search within
two minutes of the initial stop was not unduly prolonged. Case cited: People
v. Gallardo (2005) 29 Cal.Rptr.3d 455. (3:54)

Search & Seizure: Still More on Anonymous Tips
with Daniel McNerney, Superior Court Judge, State of California
Generally, anonymous tips will not provide reasonable suspicion for a
detention unless they predict future criminal activity, or give accurate details
and provide first hand knowledge by the caller. Cases/Statutes cited: People
v. Jordan (2004) 121 CA4 544; People v. Dolly (2005) 128 CA4 1354.
(7:25)

Obstructing/Removing Telephone Lines: The Latest Word
with Jeff Rubin, Alameda County District Attorney's Office
Penal Code section 591, which punishes persons who unlawfully and
maliciously take down, remove, injure, or obstruct any line of telephone, or
any part thereof, or appurtenances or apparatus connected therewith, applies
when the phone is simply unplugged with unlawful and malicious intent--
even if the phone belongs to the defendant. Case/Statute cited: People v.
McElroy (2005) 126 Cal.App.4th 874; Pen. Code, § 591. (5:28)

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September 2005 Edition - Case Law Today

Anonymous Tip of DUI
with William Bedsworth, Justice of the Court of Appeal, State of California
Courts across the country are carving out an exception to the basic rule that
an anonymous tip will not support detention, arrest, or search. A California
court has now held that an anonymous tip will support a stop for DUI.
Justice Bedsworth discusses Lowry v. Gutierrez and explains its limitations.
This is a very important case that officers need to fully understand if they are
going to work patrol. Cases cited: Lowry v. Gutierrez (2005) 124 Cal. App.
4th 926; Florida v. J.L. (2000) 529 U.S. 266. (9:18)

Subjective Intent and Search Clauses
with Jeff Rubin, Alameda County District Attorney's Office
A probationer with a search clause permitting a search for some, but not
other, items has no reasonable expectation of privacy in areas where the
items within the scope of the search may be located. Thus, where an officer
does a search under a search clause allowing searches for narcotics and finds
stolen property in a portion of the probationer’s residence where drugs might
be located, the stolen property will be admissible in court regardless of the
officer’s reason for searching. Case cited: People v. Gomez (2005) 130
Cal.App.4th 1008. (7:20)

Miranda: "Indirect" Questioning
with Daniel McNerney, Superior Court Judge, State of California
Brief statements or comments to a suspect about the case or the evidence will
not be viewed as “indirect” questioning under Miranda. Cases cited: Rhode
Island v. Innis (1980) 446 U.S. 291; People v. Simms (1993) 5 C4 405;
People v. Boyer (1989) 48 C3 247; People v. Dominick (1982) 182 CA3
1174; U.S. v. Flores (1994) 33 F3 1164; People v. Haley (2004) 34 C4 283.
(6:54)

"Grabbing Area" Searches
with Jeff Rubin, Alameda County District Attorney's Office
Police making a custodial arrest of a suspect may, incident to that arrest,
search the area immediately accessible to the suspect at the time of his
arrest, even after the arrest, so long as the search is reasonably
contemporaneous with the arrest and nothing has occurred in the meantime
to render it unreasonable. Cases cited: People v. Rege (2005) 30 Cal.Rptr.3d
922; Chimel v. California (1969) 395 U.S. 752. (5:06)

Discovery: What You Have to Give the Defense
with William Bedsworth, Justice of the Court of Appeal, State of California
Generally, anonymous tips will not provide reasonable suspicion for a
detention unless they predict future criminal activity, or give accurate details
and provide first hand knowledge by the caller. Cases cited: People v. Jordan
(2004) 121 CA4 544; People v. Dolly (2005) 128 CA4 1354. (7:38)

Imperfect Self-Defense of Others
with Jeff Rubin, Alameda County District Attorney's Office
A suspect who kills under an unreasonable but actual belief in the need to
prevent imminent great bodily injury or death to another is only guilty of
voluntary manslaughter under the doctrine of “imperfect defense of others.”
Other aspects of self-defense and imperfect self defense are discussed. Case
cited: People v. Randle (2005) 35 Cal.4th 987. (9:49)

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October 2005 Edition - Case Law Today

Miranda: Unequivocal Invocation of Right to Counsel
with Daniel McNerney, Superior Court Judge, State of California
A suspect seeking to invoke his right to have an attorney during questioning
must make such request “clear and unambiguous.” Cases/Statutes cited:
People v. Stitley (2005) 35 C4 514; People v. Roquemore (2005) 131 CA4
11. (7:18)

Parole Search Clauses: Constructive Knowledge
with Jeff Rubin, Alameda County District Attorney's Office
Officers must have advance knowledge that a suspect has a parole search
clause in order to conduct a parole search. However, knowledge the suspect
is on parole provides sufficient knowledge the suspect has parole search
clause and the search may be conducted without reasonable suspicion
notwithstanding any arguably contrary rule in Ninth Circuit. Cases/Statute
cited: People v. Middleton (2005) 31 Cal.Rptr.3d 813; Moreno v. Baca (9th
Cir. 2005) 400 F.3d 1152; Pen. Code, § 3067. (3:09)

Stops on Anonymous Tips... Again
with William Bedsworth, Justice of the Court of Appeal, State of California
Search and seizure law is currently in a state of foment on the issue of
whether a stop can be justified on the basis of an anonymous tip. Justice
Bedsworth analyzes the latest in a series of very important cases in this area.
Cases/Statutes cited: People v. Rodgers (2005 DJDAR 10122, 8/22/05);
Florida v. J.L. (2000) 529 U.S. 266; U.S. v. Holloway (11th Cir. 2002) 290
F3d 1331; People v. Coulombe (2000) 86 CA4 52. (7:54)

Transferring Forfeited Property to the Feds
with Jeff Rubin, Alameda County District Attorney's Office
State law enforcement officers who seize property for forfeiture may transfer
that property to federal law enforcement officers for federal forfeiture
proceedings without providing notice to claimants. However, when the
property has been seized pursuant to a search warrant, a court order in state
court should be obtained authorizing the transfer. Cases/Statute cited: People
v. $25,000 (2005) 131 Cal.App.4th 127; Health & Saf. Code, §§ 11469 et
seq. (10:27)

Miranda: Foreign Translation of Rights
with Daniel McNerney, Superior Court Judge, State of California
Interpreters used to translate the advisement of Miranda rights must be
careful to translate completely and accurately. Cases/Statutes cited: U.S. v.
Lopez (2003) DAR 12191; U.S. v. Santa Cruz (1993) 826 F. Supp. 355;
People v. Jaing (2005) 130 CA4 1512. (6:14)

Recording Pre-trial Detainees and "Prompting Questions"
with Jeff Rubin, Alameda County District Attorney's Office
A jailed pre-trial detainee may be secretly tape-recorded talking to other
inmates while in a jail cell. Also, if police officers engage in custodial
interrogation of a jailed suspect after he has invoked his Miranda rights and
the suspect doesn’t say anything in response to the police but the police
interrogation does prompt the suspect to later say something to his fellow
inmates after the police are gone, there is no constitutional violation. Case
cited: People v. Davis (2005) 36 Cal.4th 510. (9:14)

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November 2005 Edition - Case Law Today

PC§417: Brandishing a Weapon
with William Bedsworth, Justice of the Court of Appeal, State of California
California Penal Code §417 makes it illegal to “exhibit a weapon in a rude,
angry, or threatening manner.” This is generally referred to as “brandishing”
a weapon. Justice Bedsworth compares the federal and state “brandishing”
statutes and discusses the recent case of Beaudion to provide a solid
grounding in what this statute prevents. Case cited: United States v. Beaudion
(2005 DJDAR 8649). (6:16)

Ordering Passengers Back in Vehicle During Stop
with Jeff Rubin, Alameda County District Attorney's Office
It is well established that an officer, for safety purposes, may order a
passenger to get out of, or stay inside, a vehicle during a routine traffic stop.
The Ninth Circuit has now held it is also proper to order a passenger, who has
already exited before the detaining officer approaches, to get back inside the
vehicle. Cases cited: Maryland v. Wilson (1997) 519 U.S. 408; People v.
Castellon (1999) 76 Cal.App.4th 1369; United States v. Williams (9th Cir.
2005) 419 F.3d 1029. (8:30)

Search and Seizure: The Emergency Doctrine
with Daniel McNerney, Superior Court Judge, State of California
Police may make a warrantless entry of a residence if they have reasonable
cause to believe that an emergency is at hand that requires immediate action
by police to protect persons or property. Cases cited: Mincy v. Arizona (1978)
437 U.S. 385; U.S. v. Stafford (2005) DAR 9367. (8:54)

Searching Suspect's Property in Other's Home
with Jeff Rubin, Alameda County District Attorney's Office
This video covers two recent cases involving the search of property belonging
to a suspect where the property searched was left by the suspect in another
person’s residence and that person gave the police permission to search the
suspect’s property. The general rules regarding when a suspect can suppress
evidence found during such searches are discussed. Cases cited: People v.
Schmeck (2005) 37 Cal.4th 240; United States v. Fay (9th Cir. 2005) 410
F.3d 589. (9:49)

School Tresspass
with William Bedsworth, Justice of the Court of Appeal, State of California
With school grounds becoming more and more a popular hangout for gang
members and youthful drug dealers, police need to know what does and does
not constitute a trespass on school grounds. In this segment, Justice
Bedsworth discusses an Alaska case which upheld the arrest of a drug dealer
on school grounds. Case cited: United States v. Dorsey (2005 DJDAR 9626 9th
Circuit Court of Appeals) August 11, 2005. (7:22)

Limited Invocation of Miranda Rights
with Jeff Rubin, Alameda County District Attorney's Office
A suspect may selectively give up his Fifth Amendment rights, agreeing, for
example, to talk but not on tape. Thus, the police violated a suspect’s right
to remain silent by continuing to question a suspect (who had previously
waived his Miranda rights as to an oral statement) on tape after the suspect
stated he did not want to talk on tape. Case cited: Arnold v. Runnels (9th
Cir. 2005) 421 F.3d 859. (6:00)

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December 2005 Edition - Case Law Today

Constructive Possession: Do We Have a Case?
with William Bedsworth, Justice of the Court of Appeal, State of California
All possession statutes require proof that the defendant exercised “dominion
and control” of the item in question. That is our definition of possession –
not physical possession, but the exercise of dominion and control over the
item. This gets tricky when we’re talking about cases where the defendant
doesn’t have the object in his pocket. Justice Bedsworth uses United States v.
Young to provide a summary of how this constructive possession thing works.
Case cited: United States v. Young (2005) 420 F3d 915. (7:38)

Probable Cause Searches of Trunk
with Jeff Rubin, Alameda County District Attorney's Office
If police find drugs being transported in the passenger compartment of a
vehicle, this generally will provide probable cause to believe more illegal
drugs may be found in the trunk and allow for a search of the trunk under
the “vehicle search” exception. Cases cited: United States v. Ross (1982)
456 U.S. 798; People v. Hunter (2005) 133 Cal.App.4th 371; People v. Dey
(2000) 84 Cal.App.4th 1318. (12:14)

Miranda: More on Unequivocal Invocation of Right to Counsel
with Daniel McNerney, Superior Court Judge, State of California
Suspect being advised of their Miranda rights will occasionally ask clarifying
questions regarding those rights. Such clarifying questions do not constitute a
“clear and unambiguous” invocation. Cases cited: People v. Stitley (2005)
35 C4 514; People v. Roquemore (2005) 131 CA4 11; People v. McMahon
(2005) 131 CA4 80; Davis v. United States (1994) 512 U.S. 452. (9:31)

Searching Abandoned Property
with Jeff Rubin, Alameda County District Attorney's Office
If an item is intentionally or accidentally left at the crime scene, it may be
deemed “abandoned” and there is no reasonable expectation of privacy in
its contents and it may be searched with or without probable cause. This
video discusses the factors that go into determining when an item will be
deemed abandoned and focuses on a case where a cell phone was left at the
crime scene. Cases cited: People v. Daggs (2005) 133 Cal.App.4th 361; In
re Baraka H. (1992) 6 Cal.App.4th 1039. (11:33)

Deliberate Ignorance: Forget It
with William Bedsworth, Justice of the Court of Appeal, State of California
One of the most basic elements of any possession charge is that the
defendant knew he had contraband. There is, however, an exception to this
requirement. A possession charge can be supported by proof the defendant
thought it was probable he possessed contraband, but deliberately avoided
finding out so he could claim ignorance if charged. Cases cited: United
States v. Heredia (2005) DJDAR 12627; United States v. Jewell (9th Circuit,
1976) 532 F2d 697. (7:12)

Flight as "Willful Resistance" Under PC §148.10
with Jeff Rubin, Alameda County District Attorney's Office
Flight from an officer attempting a lawful detention or arrest constitutes
“willfully resisting” for purposes of the statute prohibiting willfully resisting a
peace officer in the discharge of his duties where such resistance proximately
cause serious bodily injury or death. Case/Statute cited: People v. Superior
Court (Ferguson) (2005) 132 Cal.App.4th 1525; Pen. Code § 148.10.
(4:04)

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