SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

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Detentions 659 Patdowns 659 Arrests 650 Out-of-State Probationer or Parolee 660 AIDS and HIV 660 Chapter 16: Consent Searches: 661 Rule 661 Why People Consent 661 Limitation; Free and Voluntary Requirement : 661 Burden of Proof 661 Factors 662 Circumstances Affecting Voluntariness: 662 Under Arrest 662 Use of Firearms 662 Threatening to Obtain a Warrant 663 Threatening to Use a Drug-Sniffing Dog 663 Implying Guilt 663 Using a Ruse 664 Threats to Take Away One’s Children 664 Other Inducements 664 Combination of Factors 665 During a Consensual Encounter 665 Manner of Inquiry 665 © 2012 Robert C. Phillips. All rights reserved. lii
Product of a Constitutional Violation: 666 Illegal Entry, Detention, or Arrest 666 Illegal Search 667 Illegal Interrogation 667 Sixth Amendment Violation 667 Consent During a Prolonged Detention: 668 General Rule 668 Lawfully Prolonged Detentions 668 After Detention Ends 669 The Scope of the Consent: 671 Burden of Proof 671 Test 671 Express vs. Implied Consent: 673 Express Consent 673 Implied Consent 673 Examples 674 The Totality of the Circumstances 674 Issues: 675 Withdrawal of Consent 675 Limiting the Consent 676 Use of a Drug-Sniffing Dog 676 Placing Conditions on the Consent 676 Use of a Ruse or Deception 676 © 2012 Robert C. Phillips. All rights reserved. liii
Page 1 and 2: SAN DIEGO DISTRICT ATTORNEY The Fou
Page 3 and 4: Table of Contents Page Chapter Summ
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: Who May Conduct a Fourth Waiver Sea
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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