SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

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© 2012 by Robert C. Phillips All rights reserved. No part of this Outline may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or through any information storage or retrieval system, when done for commercial purposes or for any form of a monetary return or profit, except as expressly permitted by federal copyright law and as indicated below. This Outline has been prepared and published for the purpose of aiding law enforcement officers, police and private investigators, law enforcement administrators, prosecutors, the judiciary, other attorneys engaged in the practice of criminal law, students, and legal educators and scholars, in accessing, using and understanding the field of Fourth Amendment Search and Seizure Law. As such, permission is expressly granted by the author to the above listed persons, or any other person, to use, reproduce, cite, and/or employ in the field of law enforcement, education or instruction any or all of this Outline, provided the source is properly and correctly identified, and except where done for commercial purposes or profit as described above. The information provided in this Outline is a summary of various aspects of Fourth Amendment Search and Seizure Law, and in many respects represents no more than the author’s opinions, interpretation and conclusions concerning the various topics discussed. Readers are advised not to rely upon the information provided in this publication without first researching and verifying the legal rules and issues intended to be used. This Outline is not intended to be a substitute for the reader’s own professional judgment and legal research. The author accepts no legal responsibility or liability for a user’s failure to properly research and verify the continued validity or correctness of any of the rules, conclusions, or opinions contained in this Outline. Comments concerning errors, misinterpretations, and/or other suggestions for correcting, expanding, or improving the information provided in this Outline are respectfully solicited, and should be directed to the author. Robert C. Phillips Deputy District Attorney (Retired) San Diego District Attorney’s Office RCPhill808@aol.com 858-395-0302 How To Use This Manual: To locate the law on any particular subject of interest to you, it is suggested that you first note the general description of the subject under “Chapter Summary,” on page iii, below. This will guide you to the correct page of the Table of Contents under “Topics,” beginning on page iv. There you will find a more detailed description of the various legal issues. This in turn will note for you the specific page in the expanded Outline where you will find all the relevant cases on that topic. © 2012 Robert C. Phillips. All rights reserved. ii
Table of Contents Page Chapter Summary: Chapter 1: The Fourth Amendment, United States Constitution 1 Chapter 2: Consensual Encounters 13 Chapter 3: Detentions 23 Chapter 4: Arrests 99 Chapter 5: Searches and Seizures 216 Chapter 6: Searches with a Search Warrant 251 Chapter 7: Warrantless Searches 412 Chapter 8: Searches of Persons 434 Chapter 9: Searches of Vehicles 506 Chapter 10: Searches of Residences and Other Buildings 541 Chapter 11: New Law Enforcement Technology 587 Chapter 12: Open Fields 600 Chapter 13: Searches of Containers 602 Chapter 14: Border Searches 623 Chapter 15: Fourth Waiver Searches 636 Chapter 16: Consent Searches 661 © 2012 Robert C. Phillips. All rights reserved. iii
Page 1: SAN DIEGO DISTRICT ATTORNEY The Fou
Page 5 and 6: New Crimes Committed in Response to
Page 7 and 8: The Use of Firearms 26 The Use of H
Page 9 and 10: To Identify a Suspect in a Criminal
Page 11 and 12: Detentions of Employees in the Work
Page 13 and 14: Booking into Jail 152 Take the Subj
Page 15 and 16: Other Types of Arrest Warrants: 170
Page 17 and 18: Sufficiency of Evidence that the Su
Page 19 and 20: P.C. § 848: Arrests by Warrant 214
Page 21 and 22: Renters with a Stolen Credit Card 2
Page 23 and 24: Exigent Circumstances 262 Non-Stand
Page 25 and 26: Unreliable (“Untested”) Informa
Page 27 and 28: P.C. § 1524.3: Out-of-State Electr
Page 29 and 30: Other Than Violent Felonies 360 Rig
Page 31 and 32: Entry by Ruse 382 Standing; An Abse
Page 33 and 34: Parental Kidnappings 410 Avoiding C
Page 35 and 36: Administrative Inspection of Fire-D
Page 37 and 38: Probable Cause from the Defendant
Page 39 and 40: Searching for Identification 464 Fi
Page 41 and 42: Purpose 488 Identification of Crimi
Page 43 and 44: Containers 507 Probable Cause Not N
Page 45 and 46: Other Buildings and Places: 542 Hot
Page 47 and 48: Detentions Outside 567 Commercial E
Page 49 and 50: With Consent of a Third Person havi
Page 51 and 52: Who May Conduct a Fourth Waiver Sea
Page 53 and 54:
Product of a Constitutional Violati
Page 55 and 56:
SAN DIEGO DISTRICT ATTORNEY The Fou
Page 57 and 58:
a jury; and (3) deter future illega
Page 59 and 60:
Constitution and federal statutes.
Page 61 and 62:
The Constitution of the United Stat
Page 63 and 64:
Second, we inquire whether the indi
Page 65 and 66:
“A federal court may grant habeas
Page 67 and 68:
Chapter 2 Consensual Encounters: Ge
Page 69 and 70:
easonable person to feel that he wa
Page 71 and 72:
detention. (United States v. Drayto
Page 73 and 74:
the officers should have informed p
Page 75 and 76:
See also People v. Maury (2003) 30
Page 77 and 78:
Chapter 3 Detentions: General Rule:
Page 79 and 80:
A person is not actually detained (
Page 81 and 82:
was asked to step away from the boa
Page 83 and 84:
vehicle for weapons held not to be
Page 85 and 86:
Non-Consensual Transportation Excep
Page 87 and 88:
enforcement officers where none exi
Page 89 and 90:
However, “the possibility of inno
Page 91 and 92:
Types of Detentions: Traffic Stops:
Page 93 and 94:
Vehicle Code § 22107 (Failure to s
Page 95 and 96:
In a case decided by the United Sta
Page 97 and 98:
See also Collier v. Montgomery (5 t
Page 99 and 100:
Weaving within a lane for three qua
Page 101 and 102:
and not excessive force under the c
Page 103 and 104:
A missing rear license plate and no
Page 105 and 106:
The theory of Whren is limited to t
Page 107 and 108:
opposed to a taxi, bus, or other co
Page 109 and 110:
Should additional justification be
Page 111 and 112:
stay inside the car or by ordering
Page 113 and 114:
(People v. Britton (2001) 91 Cal.Ap
Page 115 and 116:
A probation officer may lawfully de
Page 117 and 118:
2011) 632 F.3 rd 1064, 1079-1081; h
Page 119 and 120:
And see United States v. Mendez (9
Page 121 and 122:
officer recognized as something an
Page 123 and 124:
used at the checkpoint, (ii) the ra
Page 125 and 126:
checkpoint to check for violations
Page 127 and 128:
that the person may be involved in
Page 129 and 130:
possible association is investigate
Page 131 and 132:
detention for that purpose). There
Page 133 and 134:
and her apparent lies concerning no
Page 135 and 136:
driving to his wife’s house for t
Page 137 and 138:
To Establish Probable Cause: (Unite
Page 139 and 140:
case of a “physical (as opposed t
Page 141 and 142:
standards applicable to school offi
Page 143 and 144:
337, 340; “Detention in a patrol
Page 145 and 146:
Fifth Amendment right against self-
Page 147 and 148:
Detentions of an Employee in the Wo
Page 149 and 150:
oad enough to affect a police offic
Page 151 and 152:
suspicion” to believe a violation
Page 153 and 154:
Chapter 4 Arrests: Defined: The “
Page 155 and 156:
person to be . . . seized.’ [Cita
Page 157 and 158:
involved in the martial arts and li
Page 159 and 160:
Examples: innocence,” is also irr
Page 161 and 162:
A minor (14 years old) was seized w
Page 163 and 164:
the Fourth Amendment’s exclusiona
Page 165 and 166:
Note: A civil rights action pursuan
Page 167 and 168:
Factors to consider in determining
Page 169 and 170:
Fountain Valley (2005) 137 Cal.App.
Page 171 and 172:
eanbag; Bryan v. MacPherson (9 th C
Page 173 and 174:
P.C. § 844: “To make an arrest,
Page 175 and 176:
force used was reasonable under the
Page 177 and 178:
ecent cases: “‘Ordinarily, an o
Page 179 and 180:
Burglary of a Residence was conside
Page 181 and 182:
legally justify the application of
Page 183 and 184:
self-defense in a murder case, migh
Page 185 and 186:
(People v. Ross (2007) 155 Cal.App.
Page 187 and 188:
dangerous felonies listed in the mu
Page 189 and 190:
a duty to warn, where appropriate,
Page 191 and 192:
The question is not whether an obje
Page 193 and 194:
due process right to “familial as
Page 195 and 196:
Legal Authority for Arrests: Arrest
Page 197 and 198:
Arrests by a Private Person: P.C.
Page 199 and 200:
Superior Court (1950) 98 Cal.App.2
Page 201 and 202:
P.C. § 830.8(c): National Park Ran
Page 203 and 204:
42 U.S.C. § 1983 federal civil rig
Page 205 and 206:
misdemeanor not in the officer’s
Page 207 and 208:
provisions of the Penal Code on fel
Page 209 and 210:
3. Battery on School Grounds during
Page 211 and 212:
P.C. § 243(f)(10): “Dating Relat
Page 213 and 214:
(1907) 152 Cal. 42, 47.) What is an
Page 215 and 216:
See also the same reasoning being u
Page 217 and 218:
committing a business license infra
Page 219 and 220:
Violation of V.C. § 23109, relatin
Page 221 and 222:
Witness intimidation, per P.C. § 1
Page 223 and 224:
There is reasonable likelihood that
Page 225 and 226:
warrant is the filing of a complain
Page 227 and 228:
no violation even though he does no
Page 229 and 230:
F.3 rd 726; United States v. Mayer
Page 231 and 232:
The temporal proximity of the Fourt
Page 233 and 234:
arrests has been held to be statuto
Page 235 and 236:
suspect into physical custody. (Fis
Page 237 and 238:
(1965) 63 Cal.2 nd 690; United Stat
Page 239 and 240:
lood/alcohol level might dissipate
Page 241 and 242:
physically inside the door is also
Page 243 and 244:
cause, using a ruse to trick people
Page 245 and 246:
the officers. Accordingly, the cour
Page 247 and 248:
to suppression. Defendant’s arres
Page 249 and 250:
probable cause for another offense.
Page 251 and 252:
enforcement source, and what was no
Page 253 and 254:
Reversed Prior Conviction: A probat
Page 255 and 256:
Minors violating curfew may be stop
Page 257 and 258:
Foreign Nationals; P.C. § 834c(a)(
Page 259 and 260:
However, a number of justices have
Page 261 and 262:
defendants whose Vienna Convention
Page 263 and 264:
This admonishment, under the terms
Page 265 and 266:
Case Law: This information, includi
Page 267 and 268:
The calls are to be at public expen
Page 269 and 270:
P.C. § 849(c): Any record of arres
Page 271 and 272:
Probable Cause: Roughly the same st
Page 273 and 274:
Exceptions: Examples: Cir. 2000) 20
Page 275 and 276:
697]; Herring v. United States (200
Page 277 and 278:
United States (2009) 555 U.S. 135 [
Page 279 and 280:
A “knock and notice” violation:
Page 281 and 282:
collected blood samples, nor is it
Page 283 and 284:
Asset Forfeiture Proceedings: Evide
Page 285 and 286:
(People v. Koury (1989) 214 Cal.App
Page 287 and 288:
People v. Stewart (2003) 113 Cal.Ap
Page 289 and 290:
Residential Visitors: An overnight
Page 291 and 292:
The Fourth Amendment rights of home
Page 293 and 294:
container contained contraband. The
Page 295 and 296:
easonable expectation of privacy in
Page 297 and 298:
in his own yard in that his marijua
Page 299 and 300:
Determining Reasonableness: The rea
Page 301 and 302:
Note: California Courts’ ability
Page 303 and 304:
Army or the Air Force as a posse co
Page 305 and 306:
Chapter 6 Searches With a Search Wa
Page 307 and 308:
(United States v. Reeves (9 th Cir.
Page 309 and 310:
“Omissions or misstatements resul
Page 311 and 312:
urden of proving that the officers
Page 313 and 314:
search warrant, despite the officer
Page 315 and 316:
provide any basis for the tip that
Page 317 and 318:
Such a warrant may also be obtained
Page 319 and 320:
1993) 985 F.2 nd 946, 950; United S
Page 321 and 322:
States (1967) 389 U.S. 347, 355, fn
Page 323 and 324:
The section further requires Califo
Page 325 and 326:
A warrant that fails to include a l
Page 327 and 328:
provided in P.C. § 12028.5(b). Thi
Page 329 and 330:
there is a fair probability that co
Page 331 and 332:
A signal photograph of a nude minor
Page 333 and 334:
A chronological narrative and factu
Page 335 and 336:
officers may mistakenly search anot
Page 337 and 338:
searched as within the curtilage of
Page 339 and 340:
See also: United States v. Spilotro
Page 341 and 342:
Whether the visual depiction sugges
Page 343 and 344:
See also Guest v. Leis (6 th Cir. 2
Page 345 and 346:
See “Computer Searches,” under
Page 347 and 348:
In Smith, an “extraordinarily bro
Page 349 and 350:
cause to believe that the [given] c
Page 351 and 352:
information stale.” (People v. Ca
Page 353 and 354:
See also City of Santa Cruz v. Muni
Page 355 and 356:
However, law enforcement officers i
Page 357 and 358:
Sources of Information Establishing
Page 359 and 360:
a crime, “absent some circumstanc
Page 361 and 362:
Such a person has a proven track re
Page 363 and 364:
insufficient. [Citation.] Courts ta
Page 365 and 366:
“Luttenberger” Motions: It is t
Page 367 and 368:
Sometimes referred to as a “Skelt
Page 369 and 370:
child molest and the molester’s a
Page 371 and 372:
See “Consent,” below. “Inevi
Page 373 and 374:
property, and the industry involved
Page 375 and 376:
Mortgage Fraud Records: Note: The a
Page 377 and 378:
A “pen register” is a device th
Page 379 and 380:
of a pen register by the issuance o
Page 381 and 382:
Per Corp. Code § 2105, foreign cor
Page 383 and 384:
(1972)) Both the California Invasio
Page 385 and 386:
conduct or operation of the service
Page 387 and 388:
A judge is prohibited from granting
Page 389 and 390:
a wiretap application makes it impo
Page 391 and 392:
communication involving any of the
Page 393 and 394:
P.C. § 629.51: Definitions: to hea
Page 395 and 396:
2. Murder, The substance exceeds te
Page 397 and 398:
(People v. Zepeda (2001) 87 Cal.App
Page 399 and 400:
is not enough alone to establish ne
Page 401 and 402:
• Thirty (30) days. The 30-day li
Page 403 and 404:
any error. Under that framework, th
Page 405 and 406:
• The number of trials resulting
Page 407 and 408:
statutes. There is no expectation o
Page 409 and 410:
efore trial, hearing or proceeding
Page 411 and 412:
P.C. § 629.74: Disclosure to Other
Page 413 and 414:
• The officer shall continue to g
Page 415 and 416:
intercepted in accordance with the
Page 417 and 418:
Nothing in P.C. § 637 (Wrongful di
Page 419 and 420:
to use the communications or eviden
Page 421 and 422:
authorized by Public Law 280 (18 U.
Page 423 and 424:
Mechanics of Preparation: (People v
Page 425 and 426:
Out-of-County Service: Search warra
Page 427 and 428:
It is permissible for a burglary vi
Page 429 and 430:
Exceptions: Businesses: The rule do
Page 431 and 432:
Officers were found to have waited
Page 433 and 434:
officers. (People v. Newell (1969)
Page 435 and 436:
Upon seeing an altercation taking p
Page 437 and 438:
Cal.3 rd 263, 276; Payton v. New Yo
Page 439 and 440:
case, pursuant to P.C. § 844. (In
Page 441 and 442:
The magistrate’s failure to initi
Page 443 and 444:
procedures set forth in the America
Page 445 and 446:
Other courts have held that the con
Page 447 and 448:
Court noted that the issue was whet
Page 449 and 450:
586 [165 L.Ed.2 nd 56] (ruling that
Page 451 and 452:
While a criminal defendant’s due
Page 453 and 454:
Examples: traverse after full discl
Page 455 and 456:
(People v. Galland (2008) 45 Cal.4
Page 457 and 458:
Take the original warrant, with a s
Page 459 and 460:
The court will review the material
Page 461 and 462:
Reasonable force may be used to ins
Page 463 and 464:
It is not supposed to be an issue i
Page 465 and 466:
The Department of Justice has estab
Page 467 and 468:
No Search: There is no search when
Page 469 and 470:
Observing defendant retrieving cont
Page 471 and 472:
Examples: Exceptions: This, however
Page 473 and 474:
Examples: Per the California Suprem
Page 475 and 476:
properly used when necessary to eff
Page 477 and 478:
Searches of employee backpacks to p
Page 479 and 480:
Fourth Amendment probable cause req
Page 481 and 482:
Note that Greene v. Camreta (9 th C
Page 483 and 484:
usiness under authority of the Gun
Page 485 and 486:
School Searches: United States Code
Page 487 and 488:
lawful TSA administrative search ma
Page 489 and 490:
See also the concurring, minority o
Page 491 and 492:
only citing the driver for a speedi
Page 493 and 494:
“custodial arrest.” (See People
Page 495 and 496:
Contemporaneous in Time and Place:
Page 497 and 498:
It matters not that the container s
Page 499 and 500:
opportunity to obtain a search warr
Page 501 and 502:
(Hammer v. Gross (9 th Cir. 1991) 9
Page 503 and 504:
Thus, any subjective expectation de
Page 505 and 506:
School athletics: (Vernonia School
Page 507 and 508:
articulable suspicion that he might
Page 509 and 510:
Patting a non-student down for poss
Page 511 and 512:
controlled substance, by itself, wa
Page 513 and 514:
(1987) 194 Cal.App.3 rd 975, 982-98
Page 515 and 516:
etrieval of the keys from his pocke
Page 517 and 518:
Abandoned Property: deputy testifie
Page 519 and 520:
(In re Arturo D. (2002) 27 Cal.4 th
Page 521 and 522:
Absent an arrest, the refusal to pr
Page 523 and 524:
See Gov’t. Code § 26640; duty of
Page 525 and 526:
make as a matter of internal police
Page 527 and 528:
opposed to a non-contact visual) bo
Page 529 and 530:
Angeles (9 th Cir. 1989) 885 F.2 nd
Page 531 and 532:
“strip search” or a “visual b
Page 533 and 534:
Therefore, the resulting evidence w
Page 535 and 536:
Omnibus Crime Control and Safe Stre
Page 537 and 538:
conversation between a person in th
Page 539 and 540:
elated to “legitimate penological
Page 541 and 542:
inspection, may require “probable
Page 543 and 544:
P.C. § 295(e): Unless otherwise re
Page 545 and 546:
Reduction of defendant’s felony c
Page 547 and 548:
One’s religious beliefs might pro
Page 549 and 550:
adjudication as a ward of the court
Page 551 and 552:
Department of Justice DNA Laborator
Page 553 and 554:
Justice approved collection kit and
Page 555 and 556:
(a): Sharing or dissemination of po
Page 557 and 558:
See also United States v. Lujan (9
Page 559 and 560:
California’s provisions for extra
Page 561 and 562:
With Probable Cause When the Vehicl
Page 563 and 564:
If his car is within the “lunging
Page 565 and 566:
injury to his intended victim, to a
Page 567 and 568:
and the record contains expert test
Page 569 and 570:
and secured in a patrol car, should
Page 571 and 572:
Osife, supra, reaffirming the rule
Page 573 and 574:
Having probable cause to arrest a p
Page 575 and 576:
contraband or other seizable items,
Page 577 and 578:
The same rule applies to a houseboa
Page 579 and 580:
Inventory Searches: A lawfully impo
Page 581 and 582:
Unless required by the officer’s
Page 583 and 584:
Statutory Automobile Inspections: V
Page 585 and 586:
V.C. § 2805(b): Elements: Provides
Page 587 and 588:
An auto repair garage may be subjec
Page 589 and 590:
The driver tells the officer where
Page 591 and 592:
On the issue of whether the officer
Page 593 and 594:
vehicle may be for an ulterior purp
Page 595 and 596:
Chapter 10 Searches of Residences a
Page 597 and 598:
Also, one who rents a hotel room wi
Page 599 and 600:
A weekend fishing retreat is an “
Page 601 and 602:
Steps taken to protect the area fro
Page 603 and 604:
Lee does not affect the applicabili
Page 605 and 606:
ceiling. While the door was intende
Page 607 and 608:
However, assuming the continuing va
Page 609 and 610:
enter to secure the house pending t
Page 611 and 612:
the police and go about his busines
Page 613 and 614:
Using a Ruse to Cause a Suspect to
Page 615 and 616:
is not illegal. (People v. Rand (19
Page 617 and 618:
The theory of Gant is not restricte
Page 619 and 620:
yet been found. (See Los Angeles Co
Page 621 and 622:
1282, 1284; United States v. Paopao
Page 623 and 624:
Observation of defendant’s growin
Page 625 and 626:
Officers responding to a call of a
Page 627 and 628:
A warrantless entry was upheld to p
Page 629 and 630:
1083; United States v. Martinez (9
Page 631 and 632:
“emergency doctrine” is an exce
Page 633 and 634:
Also see Calabretta v. Floyd (9 th
Page 635 and 636:
With probable cause to believe a bu
Page 637 and 638:
ensuing standoff does not dissipate
Page 639 and 640:
However, noting that five other fed
Page 641 and 642:
Chapter 11 New Law Enforcement Tech
Page 643 and 644:
Aerial Surveillance: 0verflights ov
Page 645 and 646:
the curtilage of the home, where th
Page 647 and 648:
Videotaping and Photographing: “V
Page 649 and 650:
leash. The dog was where it had a l
Page 651 and 652:
Cir. 1993) 990 F.2 nd 1129, 1132-11
Page 653 and 654:
“Deadly Force as Defined by the M
Page 655 and 656:
lawful, and properly used in the af
Page 657 and 658:
Cardboard boxes belonging to a home
Page 659 and 660:
elevant to the charge of arrest whe
Page 661 and 662:
the way on a high shelf. (United St
Page 663 and 664:
allowing for a warrantless search o
Page 665 and 666:
It is irrelevant that the defendant
Page 667 and 668:
forced to pay out of their own pock
Page 669 and 670:
e inferred from their outward appea
Page 671 and 672:
that it contains more of the same,
Page 673 and 674:
At an Airport: At least where there
Page 675 and 676:
difficulty of travel in Alaska with
Page 677 and 678:
Chapter 14 Border Searches: General
Page 679 and 680:
The statutory authority for the Coa
Page 681 and 682:
Cal.App.4 th 791, 794-795; citing U
Page 683 and 684:
Cutting open luggage, if permanent
Page 685 and 686:
Extended border searches based upon
Page 687 and 688:
of persons for immigration, drug in
Page 689 and 690:
1255, 1264-1265.) was reversed by t
Page 691 and 692:
Parole: A condition of all paroles,
Page 693 and 694:
The wavier relates to conduct that
Page 695 and 696:
Waiver,” is an important variance
Page 697 and 698:
So long as the conditions imposed a
Page 699 and 700:
(1986) 41 Cal.3 rd 505, 534-535.) w
Page 701 and 702:
Federal Rule: The Ninth Circuit Cou
Page 703 and 704:
the subject has waived any right to
Page 705 and 706:
Exceptions: condition. The rule is
Page 707 and 708:
Entering a Residence; Probable Caus
Page 709 and 710:
was not discovered until after the
Page 711 and 712:
A search of the female defendant’
Page 713 and 714:
Knock and Notice: The “knock and
Page 715 and 716:
Chapter 16 Consent Searches: Rule:
Page 717 and 718:
command by the officer. . . . The e
Page 719 and 720:
in that house, did not invalidate d
Page 721 and 722:
And, an illegal detention (or arres
Page 723 and 724:
[where] new grounds for suspicion o
Page 725 and 726:
Despite the above authority, the Ni
Page 727 and 728:
Consent to search defendant’s tru
Page 729 and 730:
(United States v. Jenkins, supra, a
Page 731 and 732:
Consent has to be given freely and
Page 733 and 734:
(1985) 470 U.S. 298 [84 L.Ed.2 nd 2
Page 735 and 736:
Examples: However, the search of a
Page 737 and 738:
The search of an adult child’s be
Page 739 and 740:
Matlock (1974) 415 U.S. 164, 172 [3
Page 741 and 742:
When a cotenant, who is absent from
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