Office of the
District Attorney
Alameda County
Nancy E. O'Malley, District Attorney

2011 Editions

Fall 2011 [500 kb]
Summer 2011 [500 kb]
Spring 2011 [500 kb]
Winter 2011 [500 kb]

Articles

Lineups and Showups
Search Warrant Special Procedures
Search Warrants
Searches Incident to Arrest
Protective Sweeps

Alerts and Recent Cases

People v. Nelson (2011) __ Cal.App.4th __ [2011 WL 5515547]
ISSUE: Is a motorist in violation of Vehicle Code section 23123 if he uses a cell phone while
stopped at a traffic light?

Bobby v. Dixon (2011) __ U.S. __ [2011 WL 5299458]
ISSUES: (1) Did a murder suspect effectively invoke his Miranda right to counsel when he
refused to talk about the victim’s disappearance without his attorney present? (2) After
the victim’s body was found, did investigators obtain the suspect’s confession to the
murder by employing the illegal “two step” procedure?

People v. Thomas (2011) __ Cal.App.4th __ [2011 WL 5110251]
ISSUE: Under what circumstances may officers utilize a ruse to obtain a DNA sample from a suspect?

People v. Nattoli (2011) 199 Cal.App.4th 531
ISSUE: Under what circumstances may officers conduct a vehicle search based on the "reasonable suspicion" standard announced in Arizona v. Gates?

Robey v. Superior Court __ Cal.App4th __ [2011 WL 5027491]
ISSUE: If officers have probable cause to believe there are drugs in a container in their possession, are they required to obtain a warrant before searching it?
RULING SUPERSEDED: The California Supreme Court affirmed this ruling in 2013. See the report on Robey v. Superior Court in 2013 editions.

Update on DNA collection from arrestees: On October 19, 2011, the California Supreme Court announced it would review the case of People v. Buza (2011) 197 Cal.App.4th 1541 in which the Court of Appeal ruled that Pen. Code § 296 is unconstitutional as to its provision authorizing the taking of DNA samples from arrestees without a warrant. As the result of the Supreme Court's action, Buza has been depublished and no longer constitutes legal authority.

"Open Carry" Update: On October 10, 2011 Gov. Jerry Brown signed a measure that, with certain exceptions, bans the open carrying of handguns in California beginning on January 1, 2012. The law--which will become Penal Code section 26350--makes it a misdemeanor to carry an exposed and unloaded gun in a public place.

Showups: Should probable cause make them illegal? We discuss a bill now before the California Legislature that would prohibit field showups of detainees if officers had probable cause to arrest them.

"Open Carry" Detentions: A Rebuttal: We respond to a client "alert" by from a law firm about our article on "open carry" detentions

Glik v. Cunniffe (1st Cir. 2011) __ F.3d __ [2011 WL 3769092]
ISSUE: Under what circumstances may officers arrest a person for recording them as they arrest another person?

People v. Downey (2011) __ Cal.App.4th __ [2011 WL 3621856]
ISSUE: To enter a home to conduct a probation search, must officers have probable cause or merely reasonable suspicion to believe that the probationer lives there?

Dougherty v. City of Covina (9th Cir. 2011) __ F.3d. __ [2011 WL 3583404]
ISSUE: If officers have probable cause to believe that a person engaged in “inappropriate touching” of children, do they automatically have probable cause to believe he possesses child pornography?

U.S. v. Smith (8th Cir. 2011) __ F.3d __ [2011 WL 3366393]
ISSUES: (1) Did the use of felony car stop procedures on a detainee render the detention a de facto arrest? (2) When the detainee fled on foot, did he effectively abandon his vehicle so as to eliminate his privacy interest in its contents?

People v. Bennett (2011) __ Cal.App.4th __ [2011 WL 2905597]
ISSUE: Can officers detain the driver of a car for a parking violation?

People v. Stillwell (2011) __ Cal.App.4th __ [2011 WL 3035109]
ISSUES: (1) Did POST certification establish the reliability of a drug detecting dog (K9)? (2) Does an alert by a K9 establish probable cause to search? (3) Did a K9 conduct an unconstitutional “search” when he sniffed inside the bed of a pickup truck?

U.S. v. Warren (3rd Cir. 2011) 642 F.3d 182.
ISSUE: Did an officer properly advise a suspect of his Miranda rights before questioning him?

Davis v. United States (2011) __ U.S. __ [131 S.Ct. 2419]
ISSUE: If officers conduct a search in accordance with existing law, but before the resulting criminal charge is resolved the law is changed in a way that rendered the search unlawful, must evidence obtained during the search be suppressed?

GPS surveillance goes to Supreme Court: On June 27, 2011, the United States Supreme Court decided to review the case of U.S. v Jones and is expected to address the following issues: (1) Whether the warrantless use of a tracking device on a vehicle to monitor its movements on public streets violated the Fourth Amendment, and (2) whether the government violated the respondent’s Fourth Amendment rights by installing the tracking device without a valid warrant and without his consent.

J.D.B. v. North Carolina (2011) __U.S. __ [2011 WL 2369508]
ISSUE: In determining whether a minor was "in custody" for Miranda purposes, must officers take into account the minor's age?

Camreta v. Greene (2011) __ U.S. __ [2011 WL 2039369]
ISSUE: Must officers obtain a court order or parental consent before questioning a child at school about a report that the child had been sexually abused by a parent?

Kentucky v. King (2011) __ U.S. __ [2011 WL 1832821]
ISSUE: If officers make a warrantless entry into a home to prevent the destruction of evidence, under what circumstances will the entry be deemed unlawful on grounds that the threat to the evidence was created by the actions of the officers?

Garcia v. County of Merced (9th Cir. 2011) __ F.3d __ [2011 WL 1680388]
ISSUES: (1) Did officers have probable cause to arrest an attorney for smuggling drugs into the Merced County Jail? (2) In obtaining a warrant to search the attorney’s office, did officers misrepresent an informant’s criminal record?

U.S. v. Ludwig (10th Circuit 2011) __F.3d __ [2011 WL 1533520]
ISSUES: (1) Did an officer have sufficient grounds to stop a car for speeding? (2) Did the officer develop reasonable suspicion to detain the driver to investigate the possibility he was transporting drugs? (3) Was the officer’s K9 sufficiently reliable so that an alert would generate probable cause to search?

U.S. v. Cuevas-Perez (7th Cir. 2011) __ F.3d __ [2011 WL 1585072]
ISSUE: Must officers obtain a search warrant to conduct GPS surveillance of a vehicle if the
surveillance will be protracted?

People v. Rios (2011) __ Cal.App. 4th __ [2011 WL 893026]
ISSUE: While conducting a probation search of a residence, did officers have sufficient grounds to detain a visitor?

People v. Troyer (2011) 51 Cal.4th 599
ISSUE : Did officers reasonably believe that a warrantless entry into a residence was necessary to locate a shooting victim?

People v. Gomez (2011) __ Cal.App.4th __ [2011 WL 383876]
ISSUE: When a booking officer questions an arrestee about his gang affiliation and status without first obtaining a Miranda waiver, are the arrestee’s answers admissible in court under Miranda’s booking question exception?

People v. Moore (2011) __ Cal.4th __ [2011 WL 285186]
ISSUES: Was a murder suspect “in custody” for Miranda purposes when he was questioned in a patrol car? If not, was he in custody during subsequent questioning in a police interview room?

Huff v. City of Burbank (9th Cir. 2011) __ F.3d __ [2011 WL 71472]
ISSUE: Did exigent circumstances justify a warrantless entry into the home of a teenager who was reportedly planning to “shoot up” his school?

U.S. v. Carona (9th Cir. 2011) __ F.3d __ [2011 WL 32581]
ISSUE: Did a prosecutor violate a California Rule of Professional Conduct when he arranged for an informant to elicit incriminating statements from an uncharged suspect about a crime for which the suspect was represented by counsel?

People v. Diaz (2011) __ Cal.4th __ [2011 WL 6158]
ISSUE: May officers search an arrestee’s cell phone as an incident to his arrest?