SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

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Product of a Constitutional Violation: A suspect’s consent to search given immediately (i.e., without sufficient intervening factors) after each of the following will likely be held to be invalid: Illegal entry, detention or arrest. (People v. Haven (1963) 59 Cal.2 nd 713, 719; People v. Poole (1986) 182 Cal.App.3 rd 1004, 1012; People v. $48,715 United States Currency (1997) 58 Cal.App.4 th 1507; United States v. Washington (2004) 387 F.3 rd 1060; People v. Krohn (2007) 149 Cal.App.4 th 1294.) But, note that the fact that a suspect is being illegally detained does not necessarily mean, by itself, that the consent is involuntary. (See People v. Llamas (1991) 235 Cal.App.3 rd 441; noting, but not addressing the issue whether being illegally detained invalidated a consent under the “fruit of the poisonous tree” doctrine.) Under the “fruit of the poisonous tree” doctrine, subsequent events may dispel the coercive taint of the initial illegality, making a subsequent consent lawful. (See United States v. Ibarra (10 th Cir. 1992) 955 F.2 nd 1405, 1411, fn. 8.) “Where an illegal detention occurs, unless ‘subsequent events adequately dispel the coercive taint of the initial illegality, i.e., where there is no longer causality, the subsequent consent is’ ineffective. (Citations.)” (People v. Zamudio (2008) 43 Cal.4 th 327, 341.) Illegal Detention: As a “seizure” of one’s person, the products of an illegal detention are also subject to being suppressed under the Exclusionary Rule. (See People v. Krohn, supra; detaining defendant for drinking in public, when he was not in a public place, is an illegal detention and requires the suppression of the controlled substances found on his person in a subsequent consensual search.) “Where an illegal detention occurs, unless ‘subsequent events adequately dispel the coercive taint of the initial illegality, i.e., where there is no longer causality, the subsequent consent is’ ineffective.” People v. Zamudio (2008) 43 Cal.4 th 327, 340; citing People v. $48,715 United States Currency (1997) 58 Cal.App.4 th 1507, 1514.) © 2012 Robert C. Phillips. All rights reserved 666
And, an illegal detention (or arrest) will not serve to invalidate a previously obtained, otherwise lawful, consent. (People v. $48,715 United States Currency, supra, at pp. 1513-1515.) Generally, a consent to search obtained during an unlawfully prolonged detention will require the suppression of any evidence discovered during the resulting search. (See United States v. Chavez-Valenzuela (9 th Cir. 2001) 268 F.3 rd 719.) However, the Ninth Circuit Court of Appeal has held that a minimally prolonged detention (e.g., a couple of minutes), at least when motivated by other newly discovered information even though that new information by itself might not constitute a reasonable suspicion, does not make the prolonging of the detention unreasonable. Under such circumstances, a minimally prolonged detention is not unlawful. A consent to search obtained during that disputed time period is lawful. (United States v. Turvin et al. (9 th Cir. 2008) 517 F.3 rd 1097.) See “Consent During a Prolonged Detention,” below. Illegal search. (People v. Lawler (1973) 9 Cal.3 rd 156, 163; Burrows v. Superior Court (1974) 13 Cal.3 rd 238, 251.) But, a search done under the authority of a search warrant that is held only to be partially invalid may not require the suppression of evidence recovered from a consensual search of another property obtained during the execution of the warrant. (See United States v. SDI Future Health, Inc. (9 th Cir. 2009) 568 F.3 rd 684, 707-708.) Illegal interrogation. (People v. Superior Court [Keithley] (1975) 13 Cal.3 rd 406, 410; following the violation of the suspect’s Miranda rights.) Without informing a charged defendant’s lawyer in violation of the Sixth Amendment rights (i.e., after his arraignment). (Tidwell v. Superior Court (1971) 17 Cal.App.3 rd 780, 789.) © 2012 Robert C. Phillips. All rights reserved But see United States v. Kon YuLeung (2 nd Cir. 1990) 910 F.2 nd 33, 38-40 (consent valid despite having been indicted); 667
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SAN DIEGO DISTRICT ATTORNEY The Fou
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Table of Contents Page Chapter Summ
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New Crimes Committed in Response to
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The Use of Firearms 26 The Use of H
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To Identify a Suspect in a Criminal
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Detentions of Employees in the Work
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Booking into Jail 152 Take the Subj
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Other Types of Arrest Warrants: 170
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Sufficiency of Evidence that the Su
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P.C. § 848: Arrests by Warrant 214
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Renters with a Stolen Credit Card 2
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Exigent Circumstances 262 Non-Stand
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Unreliable (“Untested”) Informa
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P.C. § 1524.3: Out-of-State Electr
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Other Than Violent Felonies 360 Rig
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Entry by Ruse 382 Standing; An Abse
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Parental Kidnappings 410 Avoiding C
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Administrative Inspection of Fire-D
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Probable Cause from the Defendant
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Searching for Identification 464 Fi
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Purpose 488 Identification of Crimi
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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
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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
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Constitution and federal statutes.
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The Constitution of the United Stat
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Second, we inquire whether the indi
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“A federal court may grant habeas
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Chapter 2 Consensual Encounters: Ge
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easonable person to feel that he wa
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detention. (United States v. Drayto
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the officers should have informed p
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See also People v. Maury (2003) 30
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Chapter 3 Detentions: General Rule:
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A person is not actually detained (
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was asked to step away from the boa
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vehicle for weapons held not to be
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Non-Consensual Transportation Excep
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enforcement officers where none exi
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However, “the possibility of inno
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Types of Detentions: Traffic Stops:
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Vehicle Code § 22107 (Failure to s
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In a case decided by the United Sta
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See also Collier v. Montgomery (5 t
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Weaving within a lane for three qua
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and not excessive force under the c
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A missing rear license plate and no
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The theory of Whren is limited to t
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opposed to a taxi, bus, or other co
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Should additional justification be
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stay inside the car or by ordering
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(People v. Britton (2001) 91 Cal.Ap
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A probation officer may lawfully de
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2011) 632 F.3 rd 1064, 1079-1081; h
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And see United States v. Mendez (9
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officer recognized as something an
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used at the checkpoint, (ii) the ra
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checkpoint to check for violations
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that the person may be involved in
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possible association is investigate
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detention for that purpose). There
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and her apparent lies concerning no
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driving to his wife’s house for t
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To Establish Probable Cause: (Unite
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case of a “physical (as opposed t
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standards applicable to school offi
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337, 340; “Detention in a patrol
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Fifth Amendment right against self-
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Detentions of an Employee in the Wo
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oad enough to affect a police offic
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suspicion” to believe a violation
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Chapter 4 Arrests: Defined: The “
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person to be . . . seized.’ [Cita
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involved in the martial arts and li
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Examples: innocence,” is also irr
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A minor (14 years old) was seized w
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the Fourth Amendment’s exclusiona
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Note: A civil rights action pursuan
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Factors to consider in determining
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Fountain Valley (2005) 137 Cal.App.
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eanbag; Bryan v. MacPherson (9 th C
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P.C. § 844: “To make an arrest,
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force used was reasonable under the
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ecent cases: “‘Ordinarily, an o
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Burglary of a Residence was conside
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legally justify the application of
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self-defense in a murder case, migh
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(People v. Ross (2007) 155 Cal.App.
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dangerous felonies listed in the mu
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a duty to warn, where appropriate,
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The question is not whether an obje
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due process right to “familial as
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Legal Authority for Arrests: Arrest
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Arrests by a Private Person: P.C.
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Superior Court (1950) 98 Cal.App.2
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P.C. § 830.8(c): National Park Ran
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42 U.S.C. § 1983 federal civil rig
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misdemeanor not in the officer’s
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provisions of the Penal Code on fel
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3. Battery on School Grounds during
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P.C. § 243(f)(10): “Dating Relat
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(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
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There is reasonable likelihood that
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warrant is the filing of a complain
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no violation even though he does no
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F.3 rd 726; United States v. Mayer
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The temporal proximity of the Fourt
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arrests has been held to be statuto
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suspect into physical custody. (Fis
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(1965) 63 Cal.2 nd 690; United Stat
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lood/alcohol level might dissipate
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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.
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enforcement source, and what was no
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Reversed Prior Conviction: A probat
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Minors violating curfew may be stop
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Foreign Nationals; P.C. § 834c(a)(
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However, a number of justices have
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defendants whose Vienna Convention
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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
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P.C. § 849(c): Any record of arres
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Probable Cause: Roughly the same st
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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 [
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A “knock and notice” violation:
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collected blood samples, nor is it
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Asset Forfeiture Proceedings: Evide
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(People v. Koury (1989) 214 Cal.App
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People v. Stewart (2003) 113 Cal.Ap
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Residential Visitors: An overnight
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The Fourth Amendment rights of home
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container contained contraband. The
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easonable expectation of privacy in
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in his own yard in that his marijua
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Determining Reasonableness: The rea
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Note: California Courts’ ability
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Army or the Air Force as a posse co
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Chapter 6 Searches With a Search Wa
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(United States v. Reeves (9 th Cir.
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“Omissions or misstatements resul
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urden of proving that the officers
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search warrant, despite the officer
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provide any basis for the tip that
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Such a warrant may also be obtained
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1993) 985 F.2 nd 946, 950; United S
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States (1967) 389 U.S. 347, 355, fn
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The section further requires Califo
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A warrant that fails to include a l
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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
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A chronological narrative and factu
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officers may mistakenly search anot
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searched as within the curtilage of
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See also: United States v. Spilotro
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Whether the visual depiction sugges
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See also Guest v. Leis (6 th Cir. 2
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See “Computer Searches,” under
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In Smith, an “extraordinarily bro
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cause to believe that the [given] c
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information stale.” (People v. Ca
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See also City of Santa Cruz v. Muni
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However, law enforcement officers i
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Sources of Information Establishing
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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
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“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
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of a pen register by the issuance o
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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
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A judge is prohibited from granting
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a wiretap application makes it impo
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communication involving any of the
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P.C. § 629.51: Definitions: to hea
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2. Murder, The substance exceeds te
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(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
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• The number of trials resulting
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statutes. There is no expectation o
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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
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intercepted in accordance with the
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Nothing in P.C. § 637 (Wrongful di
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to use the communications or eviden
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authorized by Public Law 280 (18 U.
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Mechanics of Preparation: (People v
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Out-of-County Service: Search warra
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It is permissible for a burglary vi
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Exceptions: Businesses: The rule do
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Officers were found to have waited
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officers. (People v. Newell (1969)
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Upon seeing an altercation taking p
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Cal.3 rd 263, 276; Payton v. New Yo
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case, pursuant to P.C. § 844. (In
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The magistrate’s failure to initi
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procedures set forth in the America
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Other courts have held that the con
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Court noted that the issue was whet
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586 [165 L.Ed.2 nd 56] (ruling that
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While a criminal defendant’s due
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Examples: traverse after full discl
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(People v. Galland (2008) 45 Cal.4
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Take the original warrant, with a s
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The court will review the material
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Reasonable force may be used to ins
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It is not supposed to be an issue i
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The Department of Justice has estab
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No Search: There is no search when
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Observing defendant retrieving cont
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Examples: Exceptions: This, however
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Examples: Per the California Suprem
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properly used when necessary to eff
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Searches of employee backpacks to p
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Fourth Amendment probable cause req
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Note that Greene v. Camreta (9 th C
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usiness under authority of the Gun
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School Searches: United States Code
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lawful TSA administrative search ma
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See also the concurring, minority o
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only citing the driver for a speedi
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“custodial arrest.” (See People
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Contemporaneous in Time and Place:
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It matters not that the container s
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opportunity to obtain a search warr
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(Hammer v. Gross (9 th Cir. 1991) 9
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Thus, any subjective expectation de
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School athletics: (Vernonia School
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articulable suspicion that he might
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Patting a non-student down for poss
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controlled substance, by itself, wa
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(1987) 194 Cal.App.3 rd 975, 982-98
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etrieval of the keys from his pocke
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Abandoned Property: deputy testifie
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(In re Arturo D. (2002) 27 Cal.4 th
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Absent an arrest, the refusal to pr
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See Gov’t. Code § 26640; duty of
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make as a matter of internal police
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opposed to a non-contact visual) bo
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Angeles (9 th Cir. 1989) 885 F.2 nd
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“strip search” or a “visual b
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Therefore, the resulting evidence w
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Omnibus Crime Control and Safe Stre
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conversation between a person in th
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elated to “legitimate penological
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inspection, may require “probable
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P.C. § 295(e): Unless otherwise re
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Reduction of defendant’s felony c
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One’s religious beliefs might pro
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adjudication as a ward of the court
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Department of Justice DNA Laborator
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Justice approved collection kit and
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(a): Sharing or dissemination of po
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See also United States v. Lujan (9
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California’s provisions for extra
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With Probable Cause When the Vehicl
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If his car is within the “lunging
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injury to his intended victim, to a
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and the record contains expert test
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and secured in a patrol car, should
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Osife, supra, reaffirming the rule
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Having probable cause to arrest a p
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contraband or other seizable items,
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The same rule applies to a houseboa
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Inventory Searches: A lawfully impo
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Unless required by the officer’s
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Statutory Automobile Inspections: V
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V.C. § 2805(b): Elements: Provides
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An auto repair garage may be subjec
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The driver tells the officer where
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On the issue of whether the officer
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vehicle may be for an ulterior purp
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Chapter 10 Searches of Residences a
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Also, one who rents a hotel room wi
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A weekend fishing retreat is an “
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Steps taken to protect the area fro
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Lee does not affect the applicabili
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ceiling. While the door was intende
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However, assuming the continuing va
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enter to secure the house pending t
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the police and go about his busines
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Using a Ruse to Cause a Suspect to
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is not illegal. (People v. Rand (19
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The theory of Gant is not restricte
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yet been found. (See Los Angeles Co
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1282, 1284; United States v. Paopao
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Observation of defendant’s growin
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Officers responding to a call of a
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A warrantless entry was upheld to p
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1083; United States v. Martinez (9
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“emergency doctrine” is an exce
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Also see Calabretta v. Floyd (9 th
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With probable cause to believe a bu
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ensuing standoff does not dissipate
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However, noting that five other fed
Page 641 and 642:
Chapter 11 New Law Enforcement Tech
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Aerial Surveillance: 0verflights ov
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the curtilage of the home, where th
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Videotaping and Photographing: “V
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leash. The dog was where it had a l
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Cir. 1993) 990 F.2 nd 1129, 1132-11
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“Deadly Force as Defined by the M
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lawful, and properly used in the af
Page 657 and 658:
Cardboard boxes belonging to a home
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elevant to the charge of arrest whe
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the way on a high shelf. (United St
Page 663 and 664:
allowing for a warrantless search o
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It is irrelevant that the defendant
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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: in that house, did not invalidate d
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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