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

2013 Editions

Complete Fall 2013 Edition [512Kb]
Complete Spring-Summer 2013 Edition [540kb]
Complete Winter 2013 edition [427 Kb]

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Articles

Miranda Waivers
Miranda Invocations
[116 Kb]
Miranda: Post-Invocation Interrogation [87 Kb]

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Recent Cases, Updates, and Alerts

Indicates that we have written a downloadable report on the case.

We are now shipping CCI 2014. The 2014 edition of California Criminal Investigation has been printed and is now being shipped. For details, click on "Publications."

U.S. v. HOWARD (7th Cir. 2013) 729 F.3d 655
Issues: (1) Did an officer have grounds to detain the defendant in order to safely arrest one of his companions? (2) Was the detention unnecessarily intrusive? Click here for our report on this case.

U.S. v. TOSTI (9th Cir. 2013) 733 F.3d 816
Issues: (1) Did the defendant have a reasonable expectation of privacy in child pornography images on a computer he left at a CompUSA store for repair? (2) Did the defendant’s wife have apparent authority to consent to a search of digital storage devices located in the family home? Click here for our report on this case.

INFORMATIVE DUI CASE: On November 21, 2013, the California Supreme Court issued its decision in People v. Vangelder. Among other things, the court provided an interesting discussion of the science of intoxication, especially how a driver becomes impaired after drinking alcohol. For officers and prosecutors who work in this area, Vangelder is must-reading. It is also noteworthy that the defendant in Vangelder, as many defendants do, launched a vigorous attack on the reliability of breath testing to determine the degree of a driver's intoxication. In light of the new California law that expressly allows officers to seek search warrants that compel arrested drivers to submit to a blood test (Pen. Code section 1524(a)(13)), Vangelder might provide them with additional motivation to avail themselves of this law. Although the court ultimately ruled that the breath test results were sufficiently reliable, it observed that Vangelder "remained free to argue, and present evidence, that the particular machines used in this case malfunctioned, or that they were improperly calibrated or employed." Such an argument would be unavailing whenever officers obtain a blood sample.

► STANTON v. SIMS (2013) __ U.S. __ [2013 WL 5878007]
Issue: Was an officer "plainly incompetent" for making a warrantless entry into a residence to apprehend a suspect who was wanted only for a misdemeanor? Click here for our report on this case.

PEOPLE v. TURNER (2013) 219 Cal.App.4th 151
Issues: (1) Did officers have reasonable suspicion to detain a parent at a high school football game? (2) If so, did the manner in which they detained him result in a de facto arrest? Click here for our report on this case.

REDUCING THE NUMBER OF VEHICLE PURSUITS: According to NPR, police in Iowa and Florida are testing a secret weapon: a small cannon embedded in the grill of patrol cars. The cannon shoots "tracking" bullets — containing tiny GPS devices — that can stick to the trunk of a suspect's car. Officers could then follow a vehicle at a leisurely pace instead of embarking on a dangerous high-speed chase.

SEARCHING CELL PHONES INCIDENT TO ARREST: The U.S. Supreme Court has been asked to decide whether, or under what circumstances, the Fourth Amendment permits officers to conduct a warrantless search of the digital contents of an individual’s cell phone seized from the person at the time of arrest. The case is Riley v. California. Note that in People. Diaz (2011) 51 Cal.4th 84. [certiorari denied by Diaz v. California, 132 S.Ct. 94] the California Supreme Court ruled that an arrestee’s cell phone may be searched pursuant incident to an arrest because cell phones are immediately associated with the person of the arrestee. But courts in other states that have addressed this issue have reached various conclusions. See US v. Wurie (1st Cir. 2013) __ F.3d __ [2013 WL 2129119] [good general discussion of the unsettled state of the law]. We are hoping the Supreme Court will grant the petition in Riley and clarify this important issue.

NEW DUI LAW: DUI blood draw warrant is signed into law: On September 20, 2013, the Governor signed into law an amendment to Penal Code section 1524(a), specifically Penal Code section 1524(a)(13). This section expressly authorizes judges to issue search warrants to draw blood from drivers arrested for DUI in order to determine if, and to what extent, they were under the influence of alcohol, drugs, or both. The law became effective immediately. To obtain a DUI search warrant form in Microsoft Word formal (so it can be edited), send an email to POV@alcoda.org.

Text of statute: Penal Code § 1524(a) (13) When a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a court’s mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.

PEOPLE v. BURTON (2013) __ Cal.App.4th Supp. __
Issue: Under California's "in the presence" rule, if an officer makes an arrest for a misdemeanor that was not committed in his presence, must evidence resulting from the arrest be suppressed? Click here for our report on this case.

Recording suspect conversations in patrol cars: Here's an article the usefulness of clandestine video and audio recorders in patrol car in obtaining incriminating statements. Click here.

Recording police-suspect interactions: There is an interesting article in the August 21, 2013 New York Times on the growing use of officer-equipped cameras in California to record police-suspect encounters. Click here.

ROBEY v. SUPERIOR COURT (2013) 56 Cal.4th 1218
Issue: If officers have probable cause to believe that a package in their possession contains evidence of a crime, does the mobility of the package constitute an exigent circumstance that justifies a warrantless search? Click here for our report on this case.

PEOPLE v. BARNES (2013) __ Cal.App.4th __ [2013 WL 2481258]
Issue: Must officers obtain a search warrant to "ping" a stolen cell phone? Click here for our report on this case.

PEOPLE v. LEATH (2013) __ Cal.App.4th __ [2013 WL 3087071]
Issues: (1) Does a police contact automatically become an investigative detention whenever officers obtain ID from the suspect? (2) Did officers have grounds to detain a suspected armed robber? Click here for our report on this case.

PEOPLE v. ERMI (2013) 216 Cal.App.4th 277
Issue: During a probation search of a male probationer's home, under what circumstances may officers search a woman's purse? Click here for our report on this case.

SALINAS v. TEXAS (2013) __ U.S. __ [133 S.Ct. 2174]
Issue: If officers were questioning a suspect who was not in custody, and if the suspect refused to answer one of their questions, do prosecutors violate the suspect's Fifth Amendment rights by presenting testimony at the suspect's trial that he refused to answer? Click here for our report on this case.

MARYLAND v. KING (2013) __ U.S. __ [133 S.Ct. 1958]
OK to take DNA samples from arrestees: On June 3, 2013, the U.S. Supreme Court upheld a Maryland statute that requires the collection, analysis, and storage of DNA data from people arrested for certain "serious" offenses. It appears the Court's ruling will mean that California Penal Code § 296 is also constitutional. Specifically, section 296 permits the taking of DNA samples via buccal swab from people who have been arrested for murder, attempted murder, voluntary manslaughter, attempted voluntary manslaughter, or any of the felony sex offenses specified in Penal Code § 290. The constitutionality of California's law is currently under review by the California Supreme Court in the case of People v. Buza. The issue is also under en banc review by the Ninth Circuit in Haskell v. Harris.

PEOPLE v. FERNANDEZ (2012) 208 Cal.App.4th 100
Cert granted: Third party consent searches: On May 20, 2013, the U.S. Supreme Court granted a petition for writ of certiorari in People v. Fernandez. The issue is whether, under Georgia v. Randolph a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.

PEOPLE v. WESTMORELAND (2013) 213 Cal.App.4th 602, 613-14
Review granted: Police interrogation: On May 15, 2012, the California Supreme Court granted review of Westmoreland in which the Court of Appeal ruled that a murder suspect's confession was involuntary on grounds that it resulted from an officer's promise of a reduced sentence. The Supreme Court then immediately ordered the case returned to the Court of Appeal "with directions to vacate its decision denying rehearing and reconsider that cause . . ." We hope this means the Court of Appeal will reconsider its decision which, as we reported below, seemed contrary to the law and the facts. Click here for our report on the Court of Appeal's decision.

MISSOURI v. McNEELY (2013) __ U.S. __ [133 S.Ct. 1552]
Issue: If officers have arrested a suspect for a DUI-related crime, must they obtain a search warrant to forcibly obtain a sample of his blood for testing? Click here for our report on this case.

DUI Search Warrant Form Available: We have drafted a warrant form authorizing a blood draw from a DUI arrestee. The form was revised on April 22, 2013. View latest PDF version: Click here. To obtain a copy: To obtain a copy of this form in Microsoft Word format (which can be edited), send a request from a departmental email address to POV@acgov.org.

FLORIDA v. JARDINES (2013) __ U.S. __ [133 S.Ct. 1409]
Issues: (1) Did an officer conduct a “search” of the defendant’s home when he walked his drug-sniffing dog to the front door to determine if the dog detected drugs inside? (2) If so, was the search lawful under the implied consent rule? Click here for our report on this case.

U.S. v. McDOWELL (10th Cir. 2013) 713F.3d. 571
Summary: In applying the Supreme Court's ruling in Florida v. Jardines (below), the 10th Circuit ruled that an officer who walked across the driveway of McDowell's home did not violate Jardines because, "[i]n order to reach the sidewalk leading to the front door, [the officer] had to cross the driveway."

U.S. v. SHUCK (10th Cir. 2013) 713F.3d. 563
Summary: In another case applying the Supreme Court's ruling in Florida v. Jardines (below), the 10th Circuit ruled that, because it appeared that "persons entering [Shuck's] trailer entered through the back door," officers did not violate Jardines by walking to the back door in order to contact him. Said the court, “The portion of the curtilage that is the normal route of access for anyone visiting the premises is only a semi-private area on which police may set foot it they restrict their movements to places visitors could be expected to go.”

PEOPLE v. CORRALES (2013) 213 Cal.App.4th 696
Summary: The court ruled that officers may rely on circumstantial evidence in determining whether there were grounds to believe that a driver was texting in violation of Vehicle Code section 23123.5. Specifically, the court ruled that an LAPD officer had grounds for a traffic stop because, after seeing the driver using his cell phone while parked at the curb, the officer saw him drive off at a very slow speed while “leaning and looking down” at his front seat, and “making movements with his hand like he was texting.”

PEOPLE v. DIAZ (2013) 213 Cal.App.4th 743
Summary: In Diaz, a vehicular manslaughter case, the court ruled that officers do not need a search warrant to download and view data from the Sensing Diagnostic Module (a.k.a. “Black Box”) in a vehicle involved in a fatal accident if officers have probable cause to believe the data would be relevant in determining whether the data would provide evidence as to whether the driver committed a felony. The court also affirmed the trial court’s ruling that “speed and braking are always relevant in determining the causes of a collision.” Note that, although Vehicle Code section 9951 states that a court order is required, the statute does not contain a suppression remedy.

SIMS v. STANTON (9th Cir. 2013) 706 F.3d 954
Issues: (1) Did an officer conduct a “search” of a home when he kicked open a gate and entered the front yard? (2) If so, was the search lawful on grounds of exigent circumstances? Click here for our report on this case. ***This case has been overturned. See the report on Stanton v. Sims, above.

PEOPLE v. IKEDA (2013) __ Cal.App.4th __ [2013 WL 342672]
Issue: If officers arrest or detain a suspect just outside his home, under what circumstances may they conduct a protective sweep of the premises? Click here for our report on this case. NOTE: Review granted: On May 1, 2013, the California Supreme Court granted a petition to review this case. Consequently, it is no longer citable authority.

BAILEY v. UNITED STATES (2013) __U.S. __ [133 S.Ct. 1031]
Issue: May officers detain a suspect incident to the execution of a search warrant if the detention did not occur in the immediate vicinity of the premises to be searched? Click here for our report on this case.

FLORIDA v. HARRIS (2013) __ U.S. __ [133 S.Ct. 1050]
Issue: If probable cause to search a vehicle was based mainly on an alert by a drug-detecting K9, what is the test for determining whether the dog was sufficiently reliable? Click here for our report on this case.

PEOPLE v. SCHMITZ (2012) 55 Cal.4th 909
Issue: What is the permissible scope of a parole search of a vehicle if the parolee was a passenger, not the driver? Click here for our report on this case.