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

2016 Editions

Complete Winter 2016 Edition
Complete Spring-Summer 2016 Edition
Complete Fall 2016 Edition

Articles

Vehicle Searches
Recording Staged Communications
Electronic Communications Searches
[55 KB]
Questioning Defendants [54 KB]
Surreptitious Questioning [66 KB]

Recent Cases, Updates and Alerts

People v. Macabeo (2016) __ Cal.4th __ [2016 WL 7048010]
ISSUE: May officers conduct a search incident to arrest of a suspect if officers had not yet decided to take him into custody?

Thomas v. Dillard (9th Cir. 2016) 818 F.3d 864
ISSUE: When responding to a domestic violence call, do officers automatically have a right to pat search the aggressor?

People v. Lopez (2016) 4 Cal.App.5th 815
ISSUES: (1) Did an officer detain the driver of a car when he approached her and asked for ID? (2) If not, did the officer have grounds to search her car for ID when she said she was not carrying ID, but that there "might" be some inside the vehicle?

U.S. v. Wright (7th Cir. 2016) 838 F.3d 880
ISSUE: Did a suspect's domestic partner have authority to consent to a search of the suspect's computer?

U.S. v. Williams (9th Cir. 2016) 837 F.3d 1016 ISSUES: (1) Did officers have reasonable suspicion to detain the defendant? (2) As an incident to arrest, could they search the defendant’s pockets and his car?

Parole and probation searches of cell phones: Effective January 1, 2017 Penal Code section 1546.1(c) will be amended to permit officers to search the cell phones of all parolees, and the cell phones of probationers who are subject to a search condition that specifically authorizes such searches. Even though the statutes will not go into effect until January first, prosecutors may now seek cell phone search authorization but specify that it will not go into effect until January 1, 2017.

EXCEPTIONS TO CELL PHONE SEARCH WARRANT REQUIREMENT:

Penal Code section 1546.1(c) (9): Except where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is serving a term of parole under the supervision of the Department of Corrections and Rehabilitation or a term of postrelease community supervision under the supervision of county probation. Effective January 1, 2017.

Penal Code section 1546.1(c)(10): Except where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release. Effective January 1, 2017.

Birchfield v. North Dakota Update: On November 1, 2016, the DMV distributed a memo to law enforcement that should clear up the confusion resulting from the Supreme Court's decision in Birchfield. Per the memo, officers should no longer advise DUI arrestees that a refusal to consent to a chemical test will result in any criminal penalties, such as fine or imprisonment. Consequently, DMV is revising its form DS 367 to omit the following language: "Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence." This means that officers can choose between seeking a warrant or simply not reading the warning about the penal consequences of a refusal. Per DMV, law enforcement agencies will be notified when the revised DS 367 forms are available. The new forms should be ordered from the DMV Materials Management Warehouse using the normal supply procedures.

U.S. v. Torres (9th Cir. 2016) __ F.3d __ [2016 WL 3770517]
ISSUES:
(1) Did officers have sufficient reason to impound a vehicle and conduct an inventory search? (2) Was the search excessive in its scope?

U.S. v. Bohannon (2nd Cir. 2016) __ F.3d __ [2016 WL 30679931]
ISSUES: (1) If officers entered the home of third party for the purpose of serving an arrest warrant on a visitor, whose Fourth Amendment rights were violated if they did not have a search warrant? The arrestee’s? The third party’s? Both? (2) Did officers have sufficient reason to believe that the arrestee was inside the home they entered?

Birchfield v. North Dakota (2016) __ U.S. __ [136 S.Ct. 216]
ISSUE: In Birchfield, the Supreme Court announced new rules for obtaining blood samples from DUI arrestees.

U.S. v. Thomas (11th Cir. 2016) 818 F.3d 1230
ISSUES: (1) Did the defendant’s wife have common authority over computers that were used by both her and the defendant in the family home? (2) Were officers required to wake up the defendant and obtain his consent before searching the computers?

U.S. v. Henry (1st Cir. 2016) __ F.3d __ [2016 WL 3361730]
ISSUES: (1) Did an officer have sufficient grounds to patdown a jacket near a suspected sex trafficker? (2) Did the officer have probable cause to reach inside the jacket? (3) Did officers have probable cause to seize the suspect’s cell phones?

In re Rafael C. On June 29, 2016 the California Supreme Court granted a petition to review its decision in In re Rafael C. (see below for a report on the case) Consequently, Rafael C. is no longer citable authority.

U.S. v. Contreras (7th Cir. 2016) __ F.3d.__ [2016 WL 1567035]
ISSUE: Did exigent circumstances justify a warrantless entry into a residential garage to seize drugs?

People v. Espino (2016) __ Cal.App.4th __ [2016 WL 2993994] ***On August 24, 2016 the California Supreme Cour granted review of this case. It is therefore not citable authority.
ISSUES: (1) Was a traffic stop unduly prolonged? (2) Was the defendant under illegal de facto arrest when he consented to a search of his car?

Utah v. Strieff (2016) __ U.S. __ [2016 WL 3369419]
ISSUE: If officers detain a suspect illegally but then learn that he is wanted on an arrest warrant, must a court suppress any evidence discovered during a search incident to the warrant arrest?

Update: People v. Arredondo (2016) __ Cal.App.4th __ [2016 WL 758597]
As we reported in the Spring-Summer Point of View, the court in People v. Arredondo essentially ruled that unlicensed drivers were exempt from California's so-called "implied consent law. On June 6, 2016, the California Supreme Court granted review of this case. Consequently, it is no longer citable authority.

People v. Garlinger (2016) __ Cal.App.4th __ [2016 WL 3178824] [the Court of Appeal ruled that cell phone radio technology is not a “new” technology and, thus, an officer who was trained in the field could establish at trial the reliability of such technology and explain how it works].

In re Rafael C. (2016) __ Cal.App.4th __ [2016 WL 1178374]
ISSUE: Did school officials need a warrant to search a student's cell phone?
NOTE: On June 29, 2016 the California Supreme Court granted review of this case. Consequently, it is no longer citable authority.

People v. Garcia (2016) __ Cal.App.4th __ [2016 WL 693138]
ISSUE: Was a showup of three robbery suspects unduly suggestive because officers had detained them about six hours after the holdup and had told the victims beforehand that they “had caught the guys?”

U.S. v. Flores (9th Cir. 2015) 802 F.3d 1028
ISSUE: Was the information in a search warrant affidavit "stale"?

U.S. v. Houston (6th Cir. 2016) __ F.3d __ [2016 WL 482210]
ISSUES: Was the warrantless electronic surveillance of the defendant’s farm illegal because it was conducted by means of a camera atop a utility pole? If not, did it become illegal because it lasted for ten weeks?

U.S. v. Lara (9th Cir. 2016) __ F.3d __ [2016 WL 828100]
Issue: May officers search a probationer's cell phone based on a probation search condition that authorizes searches of the probationer's "property"?

People v. Arredondo (2016) __ Cal.App.4th __ [2016 WL 758597]
Under California’s Implied Consent Law, may an officer order the withdrawal of a blood sample from an arrested driver who is unlicensed? *** On June 8, 2016 the California Supreme Court granted a petition for review of this case. It is therefore no longer a citable case.

U.S. v. Thompson (7th Cir. 2016) __ F.3d __ [2016 WL 384960] ISSUES: (1) When an informant or undercover officer is invited into a suspect’s home to plan or commit a crime and, while inside, he uses a hidden audio and video device to record everything he saw or heard, is such an operation illegal because the suspect had not expressly consented to the recording? (2) In any event, should such warrantless recording be deemed unlawful because it constitutes such an extreme invasion of privacy?

People v. Perez (2016) __ Cal.App.4th __ [2016 WL 104712]
ISSUE: Was a murder suspect’s confession voluntary, or was it the result of a promise of
leniency?