Case Law Today Series

Titles

January 2008 Edition - Case Law Today

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

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

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

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

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

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

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February 2008 Edition - Case Law Today

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

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

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

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

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

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

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March 2008 Edition - Case Law Today

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

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

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

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

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

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

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April 2008 Edition - Case Law Today

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

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

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

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

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

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

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May 2008 Edition - Case Law Today

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

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

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

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

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

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

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June 2008 Edition - Case Law Today

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

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

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

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

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

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

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July 2008 Edition - Case Law Today

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

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

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

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

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

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

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August 2008 Edition - Case Law Today

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

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

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

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

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

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

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