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

2012 Editions

Complete Fall 2012 Edition [519 kb]
Complete Spring 2012 Edition [555 kb]
Complete Winter 2012 Edition [500 kb]

Articles

Miranda: When Compliance Is Compulsory
Entry to Arrest: Ramey, Payton, and Steagald
Obtaining Electronic Communications Records
Obtaining Email, Voicemail, and Text Messages

Recent Cases, Updates, and Alerts

People v. Schmitz (2012) __ Cal.4th __: On December 3, 2012, the California Supreme Court ruled that officers who are conducting a parole search of a vehicle based on based on the parole status of a passenger may search “those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity.” In doing so, it rejected the defendant’s argument that such searches must be restricted to areas that are “immediately accessible” to the parolee. Thus, the court in Schmitz ruled that, because an officer was aware that the front seat passenger was on parole, he could lawfully search a pair of shoes and a bag of potato chips in the backseat area. Said the court, “[I]t was objectively reasonable for the officer to expect that this parolee could have stowed his personal property in the backseat, tossed items behind him, or reached back to place them in accessible areas upon encountering police.” The court declined to discuss whether the scope of such searches could include closed compartments in the vehicle, such as a glove box. We will provide a more detailed analysis later.

US v. I.E.V. (9th Cir. 2012) __ F.3d __ [2012 WL 5937702]: On November 27, 2012 a divided panel of the Ninth Circuit ruled that the pat search of a passenger in a car stopped at a checkpoint was unlawful even though a K9 had alerted to the car and the driver seemed extremely nervous and “continually touched his abdomen.” The panel also ruled that, even if a pat down was permitted, the officer exceeded the permissible scope of the search because, after feeling a hard object under his shirt (the object was a brick of marijuana) he lifted his shirt to see what it was. In his dissent, Chief Judge Alex Kozinski began by saying, "Two words best describe the majority opinion: ‘wrong’ and ‘dangerous.'” He then proceeded to entirely destroy the legal basis for the majority's ruling. But, rather than engage in a futile attempt to refute Judge Kozinski's points, the majority simply ignored them; i.e., "That's our story and we're going to stick to it." For these reasons, it is likely that most courts will ignore this misguided decision or find ways to distinguish it. We will provide a more detailed analysis later.

People v. Walker (2012) 210 Cal.App.4th 165
ISSUE:
Was the physical description of a perpetrator of a sexual battery sufficiently similar to the appearance of the defendant to warrant a detention?

U.S. Supreme Court to review warrantless DNA testing of arrestees: On November 9, 2012 the U.S. Supreme Court announced it would review a Maryland law that authorizes the collection and analysis of DNA samples from people who have been arrested for certain crimes. The case is Maryland v. King. California has a similar law in Penal Code § 296 except that it permits DNA collection and anlysis of all felony arrestees. The constitutionality of California's law is currently under review by the California Supreme Court. The case is People v. Buza. Pending a decision by either the United States Supreme Court or the California Supreme Court, Penal Code § 296 remains in force. See People v. Superior Court (Clark) (1994) 22 Cal.Ap.4th 1541, 1547; Cal. Rules of Court, Rule 976(d).

New: Vehicle Tracking Warrants: Effective January 1, 2013, California judges are expressly authorized to issue search warrants for the installation and monitoring of vehicle tracking devices. The warrants may authorize tracking for 30 days, with provisions for 30-day extensions. I have written the following forms which are now available to officers: (1) Vehicle Tracking Search Warrant, and (2) Extension of Vehicle Tracking Search Warrant. These forms can be viewed in the "Forms" section of this website. To receive copies in Microsoft Word format (which can be edited), send a request from a departmental email address to CCI@acgov.org.

U.S. v. Seiver (7th Cir. 2012) 692 F.3d 774
ISSUE: Does probable cause to search a computer for data or graphics become “stale” if
officers waited several months before seeking a warrant?

Maxwell v. County of San Diego (9th Cir. 2012) __ F.3d __ [2012 WL 4017462]
ISSUE: Did sheriff’s deputies violate clearly established law when, at the scene of a fatal shooting, they detained the victim’s family members for more than five hours?

People v. Rodriguez (2012) 207 Cal.App.4th 1540
ISSUE: Did an officer have grounds to detain a suspect because he ran from him? If not, were there sufficient additional circumstances to warrant the stop?

People v. Fernandez (2012) 208 Cal.App.;4th 100
ISSUE:
If a resident of a house consents to a search, is the search unlawful if officers had just arrested another resident who, if he had not been arrested and removed from the scene, would have certainly objected to the search?

Warrantless blood testing: On September 24, 2012 the U.S. Supreme Court decided to review Missouri v. McNeely in which the issue is as follows: Can a law enforcement officer obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream?

Videotaping interrogations: "[New York City] Mayor Michael Bloomberg said on Monday that he expects a New York Police Department program that calls for the full videotaping of interrogations in major crimes to be implemented while he is still in office. Mr. Bloomberg said he supports the practice that is gaining traction nationally and has been endorsed by civil liberties groups, defense attorneys and members of law enforcement. Last week, Police Commissioner Raymond Kelly said the NYPD will significantly expand the pilot program of videotaping interrogations to include all suspects of murder and sexual-assault cases in the city, but he offered no timeline." From The Wall Street Journal.

Developments in obtaining DNA from arrestees: Penal Code § 296 authorizes the collection and analysis of the DNA of any person arrested for a felony. The constitutionality of this statute is under review, as follows: U.S. Supreme Court: On July 30, 2012, Chief Justice Roberts issued an order staying a decision of the Maryland Court of Appeals, thereby allowing Maryland’s DNA testing law to remain in effect until the U.S. Supreme Court acts on a cert. petition in the case. The Chief Justice said that there is a “fair prospect” that the U.S. Supreme Court will grant certiorari and uphold the law. California: On October 19, 2011, the California Supreme Court announced it would review the case of People v. Buza (2011) 197 Cal.App.4th 1424 in which the Court of Appeal ruled that Penal Code § 296 is unconstitutional as it applied to arrestees. As the result of the Supreme Court's action, Buza has been depublished and no longer constitutes legal authority. 9th Circuit: En banc review pending. Haskell v. Harris (9th Cir. 2012) 669 F.3d 1049.NEW DEVELOPMENT: See U.S. Supreme Court to review warrantless DNA testing of arrestees, above.

Arrest for photographing police activity: A court in New Jersey recently addressed the recurring issue of whether, or under what circumstances, officers may arrest a person for photographing police activity. To read the excerpt, click here.

On those verbose published opinions: Over the years, I have struggled through many published opinions that are longer than necessary--often much longer. Finally, a judge has addressed this issue. And he did it in a published opinion, he did it well, and (not surprisingly) he did it with few words. To read it, click here.

People v. Tully (2012) 54 Cal.4th 952
ISSUES: (1) Was a traffic stop unduly prolonged? (2) Did an officer exceed the permissible scope of a consent search? (3) Did officers violated Miranda in obtaining statements from the defendant that later linked him to a murder?

People v. Robinson (2012) 208 Cal.App.4th 232
ISSUE: Did an officer’s insertion of a key into the lock of a home constitute a search? If so, was the search lawful?

U.S. v. Skinner (6th Cir. 2012) 690 F.3d 772
Tracking cell phones: On August 14, 2012 the Sixth Circuit ruled in U.S. v. Skinner that a drug courier could not reasonably expect that officers would not monitor his travels by means of monitoring the pinging transmissions to and from his cell phone. Thus, the court ruled that officers do not need court authorization to obtain such data, at least when the phone is not tracked for an extended period of time. Said the court, the monitoring of the defendant’s cell phone location by means of pinging did not constitute a search “[b]ecause the cell-site data is simply a proxy for the defendant’s visually observable location, and a defendant has no legitimate expectation of privacy in his movements along public highways.”
NOTE: Until the matter is resolved by the U.S. Supreme Court (and this might be the case in which it does so), we recommend that officers continue to seek court authorization.

U.S. v. Flores-Lopez (7th Cir. 2012) 670 F.3d 803
ISSUE: Must officers obtain a warrant to search an arrestee's cell phone for its phone number?

People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004
ISSUE: Having secured a residence in which a man had been shot and killed, were officers required to obtain a search warrant before reentering the house to seize evidence that had been in plain view?

People v. Rangel (2012) 206 Cal.App.4th 1310
ISSUE: If a search warrant authorizes a search for indicia of gang activity, does it impliedly authorize a search of smartphones on the premises?

People v. Torres (2012) 205 Cal.App.4th 989
ISSUE: Did officers have sufficient grounds to make a warrantless entry into a hotel room to prevent the destruction of burning marijuana?

U.S. v. Bolivar (9th Cir. 2012) 670 F.3d 109
ISSUE: While conducting a probation search of a home, did officers have sufficient reason to believe that a backpack was searchable?

U.S. v. Perea-Rey (9th Cir. 2012) 680 F.3d. 1179
ISSUES: (1) Did a federal agent's entry into an enclosed carport constitute a "search"? (2) If so, was the search lawful?

People v. Tom (2012) __ Cal.App.4th __ [2012 WL 899572]
ISSUE: Was a motorist who caused a fatal traffic accident “in custody” for Miranda purposes because he was required to remain at the scene? NOTE: On June 20, 2012, the California Supreme Court granted a Petition to Review this case. Consequently, it is no longer citable authority.

People v. Mendoza (2011) 52 Cal.4th 1056
Issue: May officers pat search a person who is being contacted—not detained?

Howes v. Fields (2012) __U.S. __ [132 S.Ct. 1181]
Issue: Are state prison inmates automatically in custody for Miranda purposes when they are questioned about crimes that occurred outside the facility?

U.S. v. Glover (4th Cir. 2011) 662 F.3d 694
Issue: Did officers reasonably believe that a detainee was preparing to rob a gas station?

People v. Dement (2012) 53 Cal.4th 1
Issue: After a murder suspect invoked his right to counsel, did an officer violate Miranda by engaging in small talk about an unrelated murder case?

People v. Nelson (2012) 53Cal.4th 367
Issues: (1) In determining whether a remark by a juvenile constituted a Miranda invocation, must the officers and courts apply the same test as is used when the suspect was an adult? (2) Does a juvenile’s request to speak with a parent constitute a Miranda invocation? (3) Can waivers by juveniles be implied, or must they be express?

Ryburn v. Huff (2012) __ U.S. __ [132 S.Ct. 987]
Issue: Did exigent circumstances justify a warrantless entry by officers into the home of a teenager who was reportedly planning to “shoot up” his school?

United States v. Jones (2012) __ U.S. __ [132 S.Ct. 945]
Issue: Must officers obtain a search warrant to install a GPS monitoring device to the undercarriage of a vehicle and monitor the vehicle’s whereabouts?

U.S. v. Jones form available: Click here to view a form for a search warrant authorizing the installation and monitoring of a vehicle tracking device. Officers and prosecutors may receive a copy of this form via email in Microsoft Word format (which can be edited), by sending a request from a departmental email address to POV@acgov.org: