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

2014 Editions

Complete Fall 2014 Edition
Complete Spring-Summer 2014 Edition

Complete Winter 2014 Edition

Recent Cases, Updates, and Alerts

HEIEN v. NORTH CAROLINA (2014) __ U.S. __ [135 S.Ct. 530] *See 2015 Editions

PROPOSITION 47: IMPACT ON CRIMINAL INVESTIGATIONS. Click here for a report.

PEOPLE v. JONES (2014) 231 Cal.App.4th 1257 * See 2015 Editions

U.S. v. ANDINO (2nd Cir. 2014) 768 F.3d 94
Issues: (1) Could DEA agents lawfully enter a house if, although they had consent from an incarcerated resident, they were refused entry by a residence who was present? (2) Apart from consent, did an exigent circumstance justify the warrantless entry? (3) If so, did the exigent circumstance also allow them to enter the kitchen and the second floor? Click here for our report on this case.

U.S. v. NORA (9th Cir. 2014) 765 F.3d 1049
Issue: Did exigent circumstances justify a warrantless entry into a home to apprehend an armed and fleeing suspect? Click here for our report on this case.

PEOPLE v. LUJANO (2014) 229 Cal.App.4th 175 |
Issue: Did officers have sufficient reason to believe that a home was being burglarized so as to justify a warrantless entry? Click here for our report on this case.

PEOPLE v. McCURDY (2014) 59 Cal.4th 1063
Issues: Did the defendant invoke his Miranda rights while being questioned about the murder and sexual assault of a child? If so, did he then reinitiate questioning? Click here for our report on this case.

In re J.G. (2014) 228 Cal.App.4th 402
Issue: Did a consensual encounter between an officer and a 15-year old boy become an illegal de facto detention? Click here for our report on this case.

Apple iPhone Update (October 22, 2014): In attempting to obtain evidence is a criminal investigation, a detective with the Alameda County Sheriff's Office asked Apple if it would provide data stored in the suspect's iPhone 6 if a search warrant ordered it. Apple sent the following reply: "Dear Detective, According to your email, the Apple Device in question is an iPhone 6. All iPhone 6 devices are currently sold running iOS version 8. Since the device is running iOS version 8 or a later version, the iOS Extraction cannot be completed even upon the receipt of a valid search warrant. iCloud content may still be available upon receipt of a valid search warrant. Please refer to http://images.apple.com/privacy/docs/legal-process-guidelines-us.pdf for more information. Best, Privacy & Law Enforcement Compliance Team, Apple Inc." Just wondering: What if the stored information would have enabled officers to locate a person missing under suspicious circumstances or a kidnapped child, or if it would have thwarted an impending terrorist attack involving weapons of mass destruction? Would Apple then be so boastful about its privacy policy? It is regrettable that an iconic corporation like Apple has so little faith in the courts, the nation's criminal justice system, and the privacy protections afforded by the Fourth Amendment that it would proudly announce that its own ideas about privacy supersede all of them.

Apple iPhone Update (October 17, 2004) As discussed below, Apple is touting that its new operating system iOS8 has been designed so that criminal investigators can never access the stored data—even if they have a search warrant. In response to the FBI Director's concern about making Apple computers warrant-proof, Law Professor Orin Kerr writes in Volokh Conspiracy about the possibility (actually, it was just a thought experiment) of making such software illegal. Said Kerr, "Under this proposed statute, if the subject of a court order in a federal investigation refuses to decrypt his data in a context when there is no valid privilege, the government could bring a prosecution for the refusal that would carry the same punishment as the offense under investigation." By this time, we hope that Apple is rethinking its misguided idea.

SUPREME COURT TO RULE ON TRAFFIC STOPS: On October 2, 2014, the U.S. Supreme Court announced it would rule on whether officers may extend a traffic stop, for even a short time, after they had completed all of their duties pertaining to the stop. The case is Rodriguez v. U.S. from the Eighth Circuit, and the following is the Question Presented in the cert petition: “This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are ‘de minimis’ intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.”

SESSOMS V. GROUNDS (9th Cir. 2015) 776 F.3d 615
Case summary: In an en banc decision filed on September 22, 2014, the Ninth Circuit ruled that Sessoms, an incarcerated murder suspect, invoked his Miranda right to counsel when he told Sacramento police detectives, “There wouldn't be any possible way that I could have a—a lawyer present while we do this? … Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.” In an earlier decision, the California Court of Appeal had ruled that these remarks did not constitute an invocation because they were ambiguous. Specifically, the first remark was merely a question and the second remark was an explanation of what his father had told him to do; i.e., neither remark demonstrated that Sessoms—himself—wanted to have an attorney present. The Ninth Circuit, however, ruled the Court of Appeal’s decision was based on such a hypertechnical reading of Sessoms’s words that it constituted “an unreasonable application of Supreme Court precedent.” Consequently, it ruled that Sessoms’s subsequent incriminating statements should have been suppressed. In a dissent joined by two other judges, Circuit Judge Mary Murguia said, “Although the majority may offer the most logical interpretation of what Sessoms was attempting to communicate by his statements, there are other interpretations that are at least reasonable, even if less compelling. Even taking Sessoms's statements together, those statements contained just enough ambiguity that a fairminded jurist could conclude that Sessoms was indicating only that he might want the assistance of counsel.” It’s a close case.

Apple iPhone Update (September 22, 2014): Just received a phone call from someone who identified himself as a Stanford law professor. During a rambling five-minute spiel, he breathlessly urged me to quickly remove the "news" story (below) because it is "hurting your image" at Stanford. Why is our image at risk? (And why would a Stanford law professor care?) Because, he said, the students actually believe that we think the Fourth Amendment will have to be rewritten as the result of Apple's new privacy policy and operating system! And, he added, that's "stupid." I agreed it was stupid, but I rejected his request because I am quite certain that no one would have thought we were serious. That means the "professor" was probably a fraud, which raises the questions: Who was he? And why is he so distressed about our criticism of Apple's new privacy policy? Something is afoot.

New iPhone App: Criminals Love It
(POV News, September 20, 2014) — Apple has announced that its new operating system iOS8 has been designed so that criminal investigators can never access the stored data—even if they have a search warrant! According to Apple's website, “On devices running iOS 8, your personal data such as photos, messages (including attachments), email, contacts, call history, iTunes content, notes, and reminders is placed under the protection of your passcode. Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data. So it's not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.” “It’s a brilliant move,” said famed marketing consultant Alfred E. Neuman, who added, “Since the only people who worry about search warrants are criminals, it appears that Apple has tapped into a new and potentially lucrative consumer market: the common criminal! Plus, Apple is using this new technology to separate itself from its competitors who actually respond to search warrants.” However, according to legal scholar Roger Kaputnick, one consequence of Apple's decision is that the following language or its equivalent must quickly be added to the Fourth Amendment to the United States Constitution: Although this venerable Amendment has struggled to find a balance between the privacy interests of the People and the needs of law enforcement, no Apple device running iOS8 or later may be searchedeven with a warrantbecause Apple's Privacy Policy takes precedence over the procedure established by this revered Amendment.

Cell site data: Update on U.S. v. Davis: On September 4, 2014 the Fourth Circuit granted en banc review of a case in which a panel ruled that cell site data is private. The case was US v. Davis (11C 2014) 573 Appx. 925. As we said in our initial note on Davis, we think this case will ultimately be decided by the U.S. Supreme Court.

Red lights and detentions: Review granted: On August 20, 2014 the California Supreme Court granted a petition to review the case of People v. Brown (2014) 226 Cal.App.4th 480. In Brown, the Court of Appeal ruled that a detention did not result when an officer pulled up to a parked car and turned on his red lights.

The Aftermath of Missouri v. McNeely: By now you might have heard that many judges in California (and probably throughout the country) are unhappy about being awakened by officers at all hours of the night to review search warrant applications for DUI blood draws. And who can blame them? We would like to point out, however, that the fault for this fiasco lies not with the officers but with the U.S. Supreme Court. That is because the Court in Missouri v. McNeely made these nightly phone calls compulsory when it ruled that exigent circumstances caused by the natural elimination of alcohol and drugs from the arrestee’s bloodstream are no longer sufficient to justify most warrantless DUI blood draws, and that a search warrant based on probable cause was now required. As we noted then—and we think it is still true—the Court’s ruling was unnecessary because, prior to McNeely, if a court concluded that an officer lacked probable cause for the arrest, the evidence in the arrestee’s bloodstream would be suppressed as the fruit of an unlawful arrest. That’s still the law under McNeely, except now officers and judges must also go through the motions of pondering a standardized and self-evident list of relevant circumstances, and then asking themselves a question that could be answered correctly by any sober adult and most teenagers: Does this information establish a “fair probability” that the driver was impaired? Not only did this requirement elevate form over substance, it continues to squander police and judicial resources which are already under severe budget pressure. Maybe if the Justices had to live with the real-life consequences of their decisions they would make better ones.

RILEY v. CALIFORNIA (2014) __ U.S. __ [134 S.Ct. 2473]
Issue: If officers arrest a person who has a cell phone in his possession, may officers search the digital contents of the phone as an incident to the arrest, or must they obtain a warrant? Click here for our report on this case.

PEOPLE v. SUFF (2014) 58 Cal.4th 1013
Issues: (1) Did an officer have sufficient grounds to make a traffic stop on a suspected serial killer? (2) Did a detective violate Miranda in obtaining an incriminating statement from him? Click here for our report on this case.

IN RE S.F. (2014) 224 Cal.App.4th 1575
Issue: Did an officer have probable cause to arrest a minor for possessing a graffiti tool with the intent to vandalize? Click here for our report on this case.

IN RE J.D. (2014) 225 Cal.App.4th 709
Issue: Did school officers have sufficient grounds to search a high school student's locker?
Click here for our report on this case.

U.S. v. MEDUNJANIN (2nd Cir. 2014) 752 F.3d 576 Issue: Did FBI agents and NYPD detectives violate a terrorist's Miranda rights? Click here for our report on this case.

NAVARETTE v. CALIFORNIA (April 22, 2014) __ U.S. __ [134 S.Ct. 16832014]
Issue: Under what circumstances can an anonymous 9-1-1 caller provide officers with grounds for a traffic stop? Click here for our report on this case.

Penal Code § 296 is constitutional: Penal Code § 296 authorizes DNA buccal swabbing of any person arrested for certain felonies; i.e., murder, attempted murder, voluntary manslaughter, attempted voluntary manslaughter, or any of the felony sex offenses specified in Penal Code § 290. On March 20, 2014 the Ninth Circuit ruled the statute is constitutional. Haskell v. Harris (9th Cir. 2014) __ F.3d __ [“‘Is California’s DNA collection scheme constitutional as applies to anyone arrested for, or charged with, a felony offense by California state or local officials?’ After Maryland v. King, 133 S.Ct. 1958 (2013), the answer is clearly yes.”]. Also note that on March 19, 2014, the California Supreme Court granted review of People v. Lowe (2013) 221 CA4 1276, 1292 in which the Court of Appeal also upheld the validity of this statute.

PEOPLE v. WAXLER (2014) 224 Cal.App.4th 712
]Issues: (1) Can an officer search a vehicle for marijuana under the “automobile exception” if he has probable cause to believe the vehicle contains substantially less than an ounce? (2) Is such a search prohibited if the driver presented the officer with a medical marijuana card? Click here for our report on this case.

PEOPLE v. SPRIGGS (2013) 224 Cal.App.4th 150
Issue: Does a motorist violate Vehicle Code § 23123(a) by holding a cell phone and viewing a map application on its display? Click here for our report on this case.

PEOPLE v. ELIZALDE (2013) 222 Cal.App.4th 351
Issue: When an inmate is booked into jail, must officers obtain a Miranda waiver before asking him questions about his gang affiliation? Click here for our report on this case.
Notice: Petition for Review Granted: On April 9, 2014, the California Supreme Court announced it would review the Court of Appeal's decision in Elizalde. This means that Elizalde--a truly horrible opinion--is no longer citable authority.

FERNANDEZ v. CALIFORNIA (2014) __ U.S. [134 S.Ct. 1126]
Issue: If a person refuses to consent to a search of his home, can officers obtain consent to search from another resident after they arrest the objecting resident and remove him from the premises? Click here for our report on this case.

PEOPLE v. DUFF (2014) 58 Cal.4th 527
Issues: (1) Did officers violate Miranda before obtaining an incriminating statement from a murder suspect? (2) Was the suspect's statement involuntary? Click here for our report on this case.