SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

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(Alexander v. City and County of San Francisco (1994) 29 F.3 rd 1355.) Posing as a potential buyer of a residence, thus gaining entry for the purpose of making observations of illegal activity, is an illegal ruse. (People v. De Caro (1981) 123 Cal.App.3 rd 454.) But see People v. Lucatero (2008) 166 Cal.App.4 th 1110, below. A real estate agent who, upon showing a house to potential buyers, observed an abnormal amount of electronic equipment and suspected that the items were stolen. She called police who made a warrantless entry with the agent and, after an extensive search, seized stolen property. Although criticizing De Caro to some extent, the Court still held the warrantless entry to be illegal. The Court held that the agent, while authorized to show prospective buyers the house, was not authorized to allow the police in for the purpose of conducting a criminal investigation. The authority of a real estate agent, “is limited, as is all consensual authority, by the terms of the consent and the purpose for which it was given. [Citations] A real estate agent is authorized to consent to the entry of persons the agent believes in good faith to be potential purchasers of the property.” (People v. Jaquez (1985) 163 Cal.App.3 rd 918) Held to be Legal: Merely knocking on the defendant’s door and then stepping to the side for purposes of insuring the safety of the officers (a common police practice) is not an illegal ruse merely because the defendant (who was under the influence of methamphetamine at the time) came out about 20 feet looking for the source of the knocking and got himself arrested. (People v. Colt (2004) 118, Cal.App.4 th 1404; United States v. Crapser (9 th Cir. 2007) 472 F.3 rd 1141, 1145-1147.) When police officers who knock at the door are invited in by the occupants who did not know it was the police at the door when they made the invitation, there is no subterfuge requiring the suppression of any observations made by the officers as they enter. (Mann v. Superior Court (1970) 3 Cal.3 rd 1.) © 2012 Robert C. Phillips. All rights reserved Making an anonymous phone call to the occupant of a residence, warning him that “the police are coming; get rid of the stuff,” causing defendant to leave the house with his contraband in hand, 560
is not illegal. (People v. Rand (1972) 23 Cal.App.3 rd 579; “Where the ruse does no more than to cause a defendant, activated by his own decision, to do an incriminating act—whether that act be a sale to an undercover agent or a jettisoning of incriminating material—no illegality exists.” (Id., at p. 583; see also People v. Martino (1985) 166 Cal.App.3 rd 777, 789; phone call to cocaine dealer.) An undercover narcotics agent, misrepresenting his identity by claiming to be a potential buyer of narcotics, acts lawfully when invited into the defendant’s home for the purpose of purchasing narcotics despite the lack of a warrant. (Lewis v. United States (1966) 385 U.S. 206, 208-209 [17 L.Ed.2 nd 312].) A police officer who, with information from an untested informant that drugs were in a house that was for sale, posed as a potential buyer and was shown the house by the real estate agent, during which entry the officer made corroborating observations with which he later obtained a search warrant. The entry was held to be lawful where the officer did no more than could any prospective buyer. (People v. Lucatero (2008) 166 Cal.App.4 th 1110) The Lucatero Court differentiated its facts from People v. De Caro, supra, noting that the prior ruling’s conclusion that the entry was illegal was “dicta” only (i.e., not necessary to its decision) and incorrectly decided. The Lucatero Court also differentiated its facts from those of People v. Jaquez, supra, where the officers entered with the real estate agent’s permission for the known purpose of conducting a warrantless police investigation. In Jaquez, the real estate agent was not authorized to allow police into the house to conduct a criminal investigation. In Lucatero, where the officer posed as a potential buyer, the real estate agent was authorized to allow in potential buyers. The Lucatero Court also differentiated this case from others were ruses were held to be illegal, the Court noting that “(t)his is not a ruse in which the officer is invited in under the ruse that he is a meter reader and then does not read the meter, or that he is a friend of the repairman, but then engages in investigatory behavior inconsistent with a friend’s visit.” (Citing State v. Nedergard (Wash. Ct.App. 1988) 753 P.2 nd 526.) © 2012 Robert C. Phillips. All rights reserved 561
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SAN DIEGO DISTRICT ATTORNEY The Fou
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Table of Contents Page Chapter Summ
Page 5 and 6:
New Crimes Committed in Response to
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The Use of Firearms 26 The Use of H
Page 9 and 10:
To Identify a Suspect in a Criminal
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Detentions of Employees in the Work
Page 13 and 14:
Booking into Jail 152 Take the Subj
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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
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Administrative Inspection of Fire-D
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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
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Other Buildings and Places: 542 Hot
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Detentions Outside 567 Commercial E
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With Consent of a Third Person havi
Page 51 and 52:
Who May Conduct a Fourth Waiver Sea
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Product of a Constitutional Violati
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SAN DIEGO DISTRICT ATTORNEY The Fou
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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
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“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
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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
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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
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See also the same reasoning being u
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committing a business license infra
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Violation of V.C. § 23109, relatin
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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
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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
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cause, using a ruse to trick people
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the officers. Accordingly, the cour
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to suppression. Defendant’s arres
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probable cause for another offense.
Page 251 and 252:
enforcement source, and what was no
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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
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defendants whose Vienna Convention
Page 263 and 264:
This admonishment, under the terms
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Case Law: This information, includi
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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
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697]; Herring v. United States (200
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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
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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
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States (1967) 389 U.S. 347, 355, fn
Page 323 and 324:
The section further requires Califo
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A warrant that fails to include a l
Page 327 and 328:
provided in P.C. § 12028.5(b). Thi
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there is a fair probability that co
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A signal photograph of a nude minor
Page 333 and 334:
A chronological narrative and factu
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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
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Sources of Information Establishing
Page 359 and 360:
a crime, “absent some circumstanc
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Such a person has a proven track re
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insufficient. [Citation.] Courts ta
Page 365 and 366:
“Luttenberger” Motions: It is t
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Sometimes referred to as a “Skelt
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child molest and the molester’s a
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See “Consent,” below. “Inevi
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property, and the industry involved
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Mortgage Fraud Records: Note: The a
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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
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(1972)) Both the California Invasio
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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
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2. Murder, The substance exceeds te
Page 397 and 398:
(People v. Zepeda (2001) 87 Cal.App
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is not enough alone to establish ne
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• Thirty (30) days. The 30-day li
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any error. Under that framework, th
Page 405 and 406:
• The number of trials resulting
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statutes. There is no expectation o
Page 409 and 410:
efore trial, hearing or proceeding
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P.C. § 629.74: Disclosure to Other
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• 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
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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
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case, pursuant to P.C. § 844. (In
Page 441 and 442:
The magistrate’s failure to initi
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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
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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
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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
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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
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(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
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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
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“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: Using a Ruse to Cause a Suspect to
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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