SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

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SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and Search & Seizure An Update January, 2011 Robert C. Phillips Deputy District Attorney (Ret.) San Diego District Attorney’s Office 858-395-0302 (C) RCPhill808@aol.com Chapter 1 The Fourth Amendment, United States Constitution: The Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” (Emphasis added) See also California Constitution, Art I, § 13, with almost identical language. Scope: Initially intended to control the actions of the federal government only (See Barron ex rel. Tiernan v. Mayor of Baltimore (1833) 7 Pet. 243.), the United States Supreme Court eventually held that a violation of the Fourth Amendment by state (which includes all county and municipal) authorities does in fact constitute a Fourteenth Amendment, “due process” violation, thus imposing compliance with this protection upon the states as well. (Mapp v. Ohio (1961) 367 U.S 643 [6 L.Ed.2 nd 1081]; Baker v. McCollan (1979) 443 U.S. 137, 142 [61 L.Ed.2 nd 433, 440-441]; People v. Bracamonte (1975) 15 Cal.3 rd 394, 400.) The Fourteenth Amendment provides that no “state” shall deprive its citizens of “life, liberty, or property, without due process of law.” The Exclusionary Rule: The Fourth Amendment serves as the primary basis for the “Exclusionary Rule;” excluding evidence from the courtroom which would be otherwise admissible, when seized by law enforcement in violation of its terms. (Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652].) 1 © 2011 Robert C. Phillips. All rights reserved
History: “The exclusionary rule was originally adopted in Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, . . . ], which barred evidence obtained by federal officers in violation of the Fourth Amendment. The Supreme Court subsequently held that the rule was not constitutionally imposed upon the states. (Wolf v. Colorado (1949) 338 U.S. 25 [93 L.Ed. 1782, . . . ]; see Breithaupt v. Abram (1957) 352 U.S. 432, 434 [1 L.Ed.2 nd 448, 450, . . . ].) It was not until 1961, when Wolf was overruled, that the exclusionary rule was made mandatory in state prosecutions. (Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2 nd 1081, . . . ]; see Schmerber v. California (1966) 384 U.S. 757, 766 [16 L.Ed.2 nd 908, 917, . . . ].)” (People v. Bracamonte, supra, at p. 400, fn. 2.) The primary purpose of the Exclusionary Rule “is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” (United States v. Calandra (1974) 414 U.S. 338 [38 L.Ed.2 nd 561]; Illinois v. Krull (1987) 480 U.S. 340 [94 L.Ed.2 nd 364]; People v. Robles (2000) 23 Cal.4 th 789, 799.) “‘[T]he “prime purpose” of the [exclusionary] rule, if not the sole one, “is to deter future unlawful police conduct.” [Citations]’ (Citations)” (Italics added; People v. Sanders (2003) 31 Cal.4 th 318, 324.) It is also the purpose of the Fourth Amendment to “safeguard the privacy and security of individuals against arbitrary invasions by government officials.” (Camera v. Municipal Court (1967) 387 U.S. 523, 528 [18 L.Ed.2 nd 930, 935].) The Rule of Reasonableness: An otherwise lawful seizure can violate the Fourth Amendment if it is executed in an unreasonable manner. (United States v. Alverez-Tejeda (9 th Cir. 2007, citing United States v. Jacobsen (1984) 466 U.S. 109, 124 [80 L.Ed.2d 85].) While a parolee is subject to search or seizure without probable cause or even a reasonable suspicion, searching him may still be illegal if done in an unreasonable manner, such as by a strip search in a public place. (See People v. Smith (2009) 172 Cal.App.4 th 1354; checking defendant’s crotch area for drugs, while shielded from the public, held not to be a strip search and not unreasonable.) © 2011 Robert C. Phillips. All rights reserved 2
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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: Detention of Residents During the E
Page 11 and 12: Merchants, Library Employees and Th
Page 13 and 14: Legal Requirements of an Arrest: 14
Page 15 and 16: Telephonic Arrest Warrant 159 Ramey
Page 17 and 18: Consequences of a Ramey/Payton Viol
Page 19 and 20: P.C. § 849(c): Record of Arrest of
Page 21 and 22: Reasonableness: 229 Determining Rea
Page 23 and 24: Records of Foreign Corporations Pro
Page 25 and 26: An Informant Sworn Before A Magistr
Page 27 and 28: Exceptions 309 Prisoner Visitors 30
Page 29 and 30: Civil or Criminal Liability; Relian
Page 31 and 32: How Accomplished 373 When Warrants
Page 33 and 34: The “Plain Sight Observation” v
Page 35 and 36: Other California or United States R
Page 37 and 38: A State Hospital’s Drug Testing P
Page 39 and 40: Body Cavity Search 450 Visual Body
Page 41 and 42: Collection of Samples For Present a
Page 43 and 44: Inventory Searches 494 “Pat Down
Page 45 and 46: Securing Cases 522 Detention of a R
Page 47 and 48: Chapter 12: Open Fields: 563 Genera
Page 49 and 50: Probation: 596 Statutory Authorizat
Page 51 and 52: Limitation; Free and Voluntary Requ
Page 53: General Rule 636 Examples: 638 Land
Page 57 and 58: exclusion. (United States v. Cho (9
Page 59 and 60: Using the above factors, the fact t
Page 61 and 62: New Crimes Committed in Response to
Page 63 and 64: “I fully recognize that under the
Page 65 and 66: Police-Citizen Contacts: Contacts b
Page 67 and 68: “(T)he officer’s uncommunicated
Page 69 and 70: Asking a vehicle passenger to step
Page 71 and 72: Black defendant late at night, and
Page 73 and 74: 690]; “threatening an unlawful de
Page 75 and 76: The information motivating an offic
Page 77 and 78: “(E)ven when a police officer is
Page 79 and 80: “probable cause,” illegal. (Uni
Page 81 and 82: y belief suspect was attempting to
Page 83 and 84: The suspect is uncooperative. The o
Page 85 and 86: People v. Soun (1995) 34 Cal.App.4
Page 87 and 88: A stop and detention based upon sta
Page 89 and 90: A “High Crime” or “High Narco
Page 91 and 92: outside its lane, was cause to effe
Page 93 and 94: (See Brendlin v. California (2007)
Page 95 and 96: across his upper torso, barring the
Page 97 and 98: under the influence to justify a tr
Page 99 and 100: Mistake of Law vs. Mistake of Fact:
Page 101 and 102: violation. (United States v. Choudh
Page 103 and 104: Motor Vehicle Passengers: To Arrest
Page 105 and 106:
justify a continued detention for t
Page 107 and 108:
Under the same rationale, some fede
Page 109 and 110:
Flight: While the “flight” of t
Page 111 and 112:
Rettele (2007) 550 U.S. 609 [167 L.
Page 113 and 114:
Review was granted in this case by
Page 115 and 116:
traffic stop.” (United States v.
Page 117 and 118:
stop of the defendant’s car. (Uni
Page 119 and 120:
660]; People v. Washburn (1968) 265
Page 121 and 122:
or more), and V.C. § 23152 (drivin
Page 123 and 124:
(People v. Green (1991) 227 Cal.App
Page 125 and 126:
A person merely approaching a house
Page 127 and 128:
suspect. Also, unconnected anonymou
Page 129 and 130:
highway driver, ‘weaving all over
Page 131 and 132:
Corroboration: The information moti
Page 133 and 134:
putting their anonymity at risk), a
Page 135 and 136:
the search,” a vice principal’s
Page 137 and 138:
undue invasion of privacy. (Frankli
Page 139 and 140:
The only issue left hanging by Chri
Page 141 and 142:
Similar cases: No seizure when an o
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A traffic stop for a violation of V
Page 145 and 146:
Spotlighting the defendant in a hig
Page 147 and 148:
committed a criminal offense. (Cita
Page 149 and 150:
police officers also had reasonable
Page 151 and 152:
Examples: Similarly, the fact that
Page 153 and 154:
910, 918-921; but qualified immunit
Page 155 and 156:
United States for prosecution. (Alv
Page 157 and 158:
McKinney (9 th Cir. 2005) 394 F.3 r
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is excessive force sufficient to cr
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Duty to Warn: © 2011 Robert C. Phi
Page 163 and 164:
or window of the house in which the
Page 165 and 166:
Applicable Statutes: P.C. § 196: H
Page 167 and 168:
Constitution. A Fourth Amendment
Page 169 and 170:
This presumption, however, is rebut
Page 171 and 172:
v. Lee (2005) 131 Cal.App.4 th 1413
Page 173 and 174:
own delusions. (People v. Mejia-Len
Page 175 and 176:
caused a jury to believe that the o
Page 177 and 178:
But on the other hand, it is consti
Page 179 and 180:
Other federal circuits have approve
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When the suspect attacked an office
Page 183 and 184:
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
Page 193 and 194:
misdemeanor not in the officer’s
Page 195 and 196:
provisions of the Penal Code on fel
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3. Battery on School Grounds during
Page 199 and 200:
P.C. § 243(f)(10): “Dating Relat
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“No hard and fast rule can, howev
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during a nighttime search without j
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ooking a suspect for a non-bookable
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Violation of V.C. § 23332, relatin
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Misdemeanor domestic violence, per
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The warrant of arrest indicates tha
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pre-filing arrest warrants are now
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Michigan (2006) 547 U.S. 586 [165 L
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“Thus, for Fourth Amendment purpo
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charge, whether or not the offense
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need for justifying nighttime servi
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to their entry into the residence.
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possibility that defendant would di
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seldom, if ever, justify a warrantl
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A parolee (and, therefore, presumab
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circumstances is not an exception t
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attempt to serve an arrest warrant
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“(A)n officer’s reliance on the
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properly be charged with knowledge,
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However, the Court in Downing noted
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warrant exists for that person. (Mo
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Cal.App.3 rd 849, 854; and Johanson
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The United States Supreme Court, un
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(Cornejo v. County of San Diego (9
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A Miranda-style admonishment obviou
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A bail bondsman. A relative or othe
Page 253 and 254:
The calls are to be at public expen
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P.C. § 849(c): Any record of arres
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Presumptions: See “Arrests,” ab
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Exceptions: Examples: Observations
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See “Good Faith,” below, and
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L.Ed.2 nd 496]; see also People v.
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A “knock and notice” violation:
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DNA with that left at a crime scene
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probable cause supporting the concl
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circumstances. The defendant’s ac
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A passenger in a vehicle that he ne
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Cal.App.3 rd 1209; People v. Ooley
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etained a reasonable expectation of
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documents at the time of seizure. (
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Also, using counterfeit money to re
Page 283 and 284:
Determining Reasonableness: The rea
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When a stop or search is not a “r
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Case Law: Army, Navy, Air Force, or
Page 289 and 290:
Chapter 6 Searches With a Search Wa
Page 291 and 292:
(United States v. Reeves (9 th Cir.
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to be defective. (United States v.
Page 295 and 296:
Delay of 52 days between a controll
Page 297 and 298:
A warrant that failed to identify a
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mail system, or a computer server,
Page 301 and 302:
Under California law, while failure
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to believe that blood, semen, or an
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served with a search warrant issued
Page 307 and 308:
qualified immunity from civil liabi
Page 309 and 310:
having communicated a threat to a p
Page 311 and 312:
Note that Gates also describes the
Page 313 and 314:
It is irrelevant that a peace offic
Page 315 and 316:
cause.” (People v. Nicholls (2008
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a factor which will help to overcom
Page 319 and 320:
Whether probable cause exists to se
Page 321 and 322:
Whether the child is fully or parti
Page 323 and 324:
And Mahlberg v. Mentzer (8 th Cir.
Page 325 and 326:
could result in suppression of all,
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such media prior to a forensic exam
Page 329 and 330:
Multiple Affiants/Affidavits: There
Page 331 and 332:
There is a reasonable basis for bel
Page 333 and 334:
See “Standing,” above. Informat
Page 335 and 336:
person, vehicle, or other container
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Citizen Informants: Private persons
Page 339 and 340:
The expected favor or personal gain
Page 341 and 342:
252 F.3 rd 1070.) unless corroborat
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Superior Court [People] (2010) 186
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The danger is in insuring that the
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Computer Searches: Use of a Search
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the illegal search. (Nix v. William
Page 351 and 352:
613]; People v. Paulson (1990) 216
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Mortgage Fraud Records: P.C. § 532
Page 355 and 356:
court of “general jurisdiction;
Page 357 and 358:
protected by the wiretap statutes.
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admissible in court per Evid. Code
Page 361 and 362:
Under Title III; “(I)t shall not
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P.C. § 632.5: Cellular radio telep
Page 365 and 366:
A peace officer is required to stop
Page 367 and 368:
applicant to justify his or her bel
Page 369 and 370:
Gonzalez, Inc. (9 th Cir. 2006) 437
Page 371 and 372:
“any aural transfer made in whole
Page 373 and 374:
destruction, or 11419, relating to
Page 375 and 376:
It is not necessary that the govern
Page 377 and 378:
identity is not known, then that in
Page 379 and 380:
• Terminate upon attainment of th
Page 381 and 382:
The Attorney General shall, upon th
Page 383 and 384:
• Other data that the Legislature
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• Kept where the judge orders.
Page 387 and 388:
P.C. § 629.72: Motions to Suppress
Page 389 and 390:
any person regardless of how the pe
Page 391 and 392:
For crimes listed in P.C. § 629.52
Page 393 and 394:
A fine not exceeding two thousand f
Page 395 and 396:
P.C. § 629.90: Order for Cooperati
Page 397 and 398:
P.C. § 629.96: Severability: If an
Page 399 and 400:
“ICRA”) applies instead. Howeve
Page 401 and 402:
and Federal Rules of Criminal Proce
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who conduct investigations under th
Page 405 and 406:
Peterson (1973) 9 Cal.3 rd 717, 723
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aggravated as to be a constitutiona
Page 409 and 410:
For example: also People v. Flores
Page 411 and 412:
the purpose of a police visit and a
Page 413 and 414:
door slammed in their face at the f
Page 415 and 416:
ecause “an unannounced entry may
Page 417 and 418:
California (1990) 496 U.S. 128, 138
Page 419 and 420:
But see United States v. Payton (9
Page 421 and 422:
“quashal” of the Government’s
Page 423 and 424:
The “return package” consists o
Page 425 and 426:
See United States v. Vesikuru (9 th
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estricted to protecting confidentia
Page 429 and 430:
In a traversal motion: The trial co
Page 431 and 432:
Return of Property: (4) The law enf
Page 433 and 434:
Take the original warrant, with a s
Page 435 and 436:
Geothermal Services Co. v. Superior
Page 437 and 438:
necessary under the circumstances.
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guilty. The only issue to be resolv
Page 441 and 442:
and credible information that the k
Page 443 and 444:
No Search: There is no search when
Page 445 and 446:
Observing defendant retrieving cont
Page 447 and 448:
Examples: Exceptions: This, however
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Examples: for that purpose.’ (Peo
Page 451 and 452:
To check on the welfare of persons
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that dangerous weapons will not be
Page 455 and 456:
A state hospital’s drug testing p
Page 457 and 458:
defendant about issues unrelated to
Page 459 and 460:
School Searches: © 2011 Robert C.
Page 461 and 462:
luggage on the conveyor belt for x-
Page 463 and 464:
See also the concurring, minority o
Page 465 and 466:
only citing the driver for a speedi
Page 467 and 468:
“custodial arrest.” (See People
Page 469 and 470:
Contemporaneous in Time and Place:
Page 471 and 472:
search incident to an arrest where
Page 473 and 474:
not be admissible in court. The lik
Page 475 and 476:
manner and without use of excessive
Page 477 and 478:
Examples: Holding a subject’s Ada
Page 479 and 480:
A school search “will be permissi
Page 481 and 482:
subjected to physical touching of h
Page 483 and 484:
movements of the passenger during t
Page 485 and 486:
a possible weapon below the clothin
Page 487 and 488:
a finding of probable cause to sear
Page 489 and 490:
Other Situations: Taking the hint,
Page 491 and 492:
Searching for Identification: perso
Page 493 and 494:
(United States v. Kinkade (9 th Cir
Page 495 and 496:
Prisoner Searches: A person who is
Page 497 and 498:
Exceptions: Although Smith has neve
Page 499 and 500:
Note also authority (albeit the min
Page 501 and 502:
Thompson v. Los Angeles, supra, how
Page 503 and 504:
Restrictions: In the case of most m
Page 505 and 506:
authority of a search warrant issue
Page 507 and 508:
517, 526 [82 L.Ed.2d 393, 402-403 .
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ules nor California’s Privacy Act
Page 511 and 512:
The sole exception is legal corresp
Page 513 and 514:
Immediately prior to a proposed sea
Page 515 and 516:
violation. (Overton v. Bazzetta, su
Page 517 and 518:
(C): Forward the collected specimen
Page 519 and 520:
(4): Includes attempts. (5): These
Page 521 and 522:
Subd. (a)(1): Collection from any a
Page 523 and 524:
Subd. (a)(4): Collection from parol
Page 525 and 526:
(iii): The person has any record of
Page 527 and 528:
on duty, which must include the det
Page 529 and 530:
(3): Only tests of value to law enf
Page 531 and 532:
taking of the sample, is a constitu
Page 533 and 534:
With Probable Cause When the Vehicl
Page 535 and 536:
If his car is within the “lunging
Page 537 and 538:
Thornton v. United States, supra, a
Page 539 and 540:
see also United States v. Finley (5
Page 541 and 542:
Superior Court [Nasmeh] (2007) 151
Page 543 and 544:
cause to believe is there, is subje
Page 545 and 546:
(Wyoming v. Houghton (1999) 526 U.S
Page 547 and 548:
Where the defendant’s bloody shoe
Page 549 and 550:
Using an inventory search of a vehi
Page 551 and 552:
© 2011 Robert C. Phillips. All rig
Page 553 and 554:
Court as authority for an officer t
Page 555 and 556:
594, 598-599 [69 L.Ed.2 nd 262, 268
Page 557 and 558:
The California Supreme Court has ru
Page 559 and 560:
California is now in accord with th
Page 561 and 562:
driving on a suspended license or n
Page 563 and 564:
“As a general rule, to satisfy th
Page 565 and 566:
ills she used were counterfeit. Als
Page 567 and 568:
courts have extended Fourth Amendme
Page 569 and 570:
Cir. 1993) 6 F.3 rd 673; but see St
Page 571 and 572:
supervisors was tested by the O’C
Page 573 and 574:
Securing the Premises pending the o
Page 575 and 576:
Securing Cases: Securing a residenc
Page 577 and 578:
asking questions of the occupant th
Page 579 and 580:
Note: Exigent circumstances might b
Page 581 and 582:
uyers the house, was not authorized
Page 583 and 584:
See “Protective Sweeps,” below.
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upheld absent an articulable reason
Page 587 and 588:
insufficient cause to do a protecti
Page 589 and 590:
yard, in that his marijuana plants
Page 591 and 592:
for believing’ that ‘a person w
Page 593 and 594:
Welfare Checks, the “Emergency Ai
Page 595 and 596:
that an emergency is unfolding in t
Page 597 and 598:
apparently had been struck. The war
Page 599 and 600:
the immediate, warrantless entry in
Page 601 and 602:
Emergency Exception and the Odor of
Page 603 and 604:
pp. 45-52]; People v. Codinha (1982
Page 605 and 606:
Chapter 11 New Law Enforcement Tech
Page 607 and 608:
California’s previous rule that o
Page 609 and 610:
public. Knotts, although warning th
Page 611 and 612:
of keeping weapons off campuses. Th
Page 613 and 614:
interests.’” (United States v.
Page 615 and 616:
Referring to the standards for the
Page 617 and 618:
Chapter 13 Searches of Containers:
Page 619 and 620:
Incident to Arrest, In a Vehicle: W
Page 621 and 622:
asking a friend to retrieve what of
Page 623 and 624:
Searches of Cell Phones, Disks, Com
Page 625 and 626:
program unavailable to the general
Page 627 and 628:
the result of work-related messagin
Page 629 and 630:
The Fourth Amendment was not implic
Page 631 and 632:
Customs Inspections: Similarly, the
Page 633 and 634:
An addressee has both a possessory
Page 635 and 636:
Chapter 14 Border Searches: General
Page 637 and 638:
The statutory authority for the Coa
Page 639 and 640:
431 U.S 606, 619-622 [52 L.Ed.2 nd
Page 641 and 642:
Cutting open luggage, if permanent
Page 643 and 644:
normal expectation of privacy. It m
Page 645 and 646:
See also United States v. Berber-Ti
Page 647 and 648:
Chapter 15 Fourth Waiver Searches:
Page 649 and 650:
§ 3067, so long as he knew that th
Page 651 and 652:
justify a search for stolen propert
Page 653 and 654:
ather than the probation officer as
Page 655 and 656:
The Ninth Circuit Court of Appeal h
Page 657 and 658:
a parolee. (Samson v. California (2
Page 659 and 660:
Searching While In Ignorance of a S
Page 661 and 662:
the defendant was subject to either
Page 663 and 664:
A suspect subject to search and sei
Page 665 and 666:
[roommate's consent, obtained after
Page 667 and 668:
officers have a “reasonable suspi
Page 669 and 670:
Viers further held that it was irre
Page 671 and 672:
ecord of assault on a peace officer
Page 673 and 674:
“(T)he government’s burden to s
Page 675 and 676:
“(I)mplicit in the officer’s st
Page 677 and 678:
© 2011 Robert C. Phillips. All rig
Page 679 and 680:
Consent During a Prolonged Detentio
Page 681 and 682:
this procedure, and therefore does
Page 683 and 684:
methamphetamine was hidden in a par
Page 685 and 686:
Issues: May a suspect withdraw con
Page 687 and 688:
But, a ruse is but one factor to co
Page 689 and 690:
a factor that should be considered
Page 691 and 692:
Examples: “(A) guest who has the
Page 693 and 694:
when the son did not pay rent, and
Page 695 and 696:
(1982) 30 Cal.3 rd 841, 855-857; wi
Page 697 and 698:
But note, should the present cotena
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