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

2017 Editions

Complete Fall 2017 Edition
Complete Spring-Summer 2017 Edition
Complete Winter 2017 Edition

Recent Cases, Updates and Alerts

New California Statute
Interrogating Minors Age 15 and younger

Effective January 1, 2018, minors who are 15-years old or younger cannot be subjected to custodial interrogation unless they have consulted “with legal counsel in person, by telephone, or by video conference.” Welfare and Institutions Code section 625.6. Because attorneys will undoubtedly instruct minors not to talk to officers, and because minors cannot waive this restriction, it will become virtually impossible to interrogate such suspects without violating this statute regardless of the seriousness of the crime or the maturity and experience of the minor.

Consequences of violation: If officers interrogate a minor who has not consulted with an attorney, any statement he makes may be suppressed. Although the statute does not state the legal basis for suppression (the legislature cannot technically establish a new Miranda requirement), it appears it intended that suppression be based on Evidence Code section 352.

“Custodial interrogation” defined: By using the term “custodial interrogation” in this statute, the legislature apparently intended to incorporate the definition of this term that is used in Miranda cases. Specifically, the minor would be in custody if a reasonable person in his position would have believed that his freedom of action had been curtailed to the degree associated with a formal arrest; and the minor would be "interrogated" if officers asked him a question or made a statement that was reasonably likely to elicit an incriminating response, even if it did not call for one.

Exception: Exigent circumstances: Consultation with an attorney is not required if (1) officers “reasonably believed that information he or she sought was necessary to protect life or property from an imminent threat,” and (2) the officer’s questions were “reasonably necessary to obtain that information.”

In re Ezra Griffith (D.C.C. 2017) __ F.3d __ [2017 WL 3568288]
COMMENT
: In what is the most mindless appellate court decision in recent memory, a panel of the D.C. Circuit ruled on August 18, 2017 that, even though the U.S. Supreme Court has observed that cell phones are now “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy” (Riley v. California (2014) __ U.S.__[134 S.Ct. 2473], the affidavit in this case failed to establish probable cause to search for the defendant's cell phone in his home because the affidavit did not contain an explanation as to why this particular defendant possessed a cell phone. It is unnecessary to discuss the court's reasoning because there is none. (The opinion is also unnecessarily long which almost always demonstrates that the judges had a hard time justifying their ruling.) In any event, we need only refer to the dissenting opinion of Judge Janice Rogers Brown to demonstrate the panel's ineptitude. Said Judge Brown: "In dismissing these logical inferences [as to the defendant's ownership of a cell phone], the Court focuses on the fact that the affidavit does not mention Griffith owning or using a cell phone. But these statements ignore the realities of the world in which we live and jettison the common-sense inquiry judges are to make when determining the existence of probable cause. The Supreme Court has recognized that “a significant majority of American adults now own [cell] phones.” This statement is confirmed by the Pew Research Center, whose research indicates that in 2013 over 90% of American adults owned a cell phone. Furthermore, this number jumps up to 97% for adults between ages 18 and 34. Id. Thus, the Court’s assertion that the affiant’s failure to allege that Griffith owned a cell phone somehow resulted in a bare bones affidavit devoid of any indicia of probable cause that Griffith did, in fact, own a cell phone is pure applesauce."

In re D.W. (2017) __ Cal.App.5th __ [2017 WL 2875860]
ISSUE: If officers have probable cause to believe that a person possessed an ounce or less of recreational marijuana, may they search him for the marijuana as a routine incident to the arrest?

People v. McKnight (2017) __ P.3d -- [2017 WL 2981808]
ISSUES:
(1) Does the use of a K9 to detect marijuana in a vehicle constitute a “search” in states where possession of small amounts of marijuana is lawful? (2) If so, did the officers have probable cause to search?

U.S. v. Spivey (11th Cir. 2017) __ F.3d. __ [2017 WL 2782852]
ISSUE: Under what circumstances will consent to enter a residence be invalidated if officers lied about their objective?

People v. Nguyen (2017) 12 Cal.App.5th 574
ISSUE: Did a search warrant impliedly authorize a search of two residences on the suspect's property?

U.S. v. Ulbricht (2nd Cir. 2017) 858 F.3d 71
ISSUE:
When officers write search warrants for electronic communications or data, how much specificity is required when describing the information to be seized?

People v. Pou (2017) 11 Cal.App.5th 143
ISSUE: Did the "emergency aid" exception to the warrant requirement justify a warrantless entry and protective sweep of a home?

People v. Cervantes (2017) 11 Cal.App.5th 860
ISSUE:
Did officers exceed the permissible scope of a probation search of a vehicle when they searched two bags in the back seat even though the bags did not belong to the probationer?

Ames v. King County (9th Cir. 2017) 846 F.3d 340
ISSUE:
Did a sheriff’s deputy act reasonably when she forcibly detained a woman who was interfering in a medical emergency?

U.S. v. Perkins (9th Cir. 2017) 850 F.3d 1109
ISSUES: (1) Was a search warrant affidavit intentionally or recklessly misleading? (2) If so,
did probable cause exist despite the misleading information? (3) If a warrant to search
for child pornography was based on a photo, must the photo be included in the affidavit?

People v. Villa-Gomez (2017) 9 Cal.App.5th 527
ISSUE:
If a sheriff’s deputy asks a prisoner about his gang membership during the booking process, are his responses admissible to prove his gang affiliation as to a crime he committed later?

People v. Superior Court (Corbett) (2017) 8 Cal.App.5th 670
ISSUES:
(1) Did an officer violate the defendant’s Miranda rights? (2) Did the defendant voluntarily consent to a search of his home? (3) If the consent was involuntary, was the search nevertheless lawful because the officers had probable cause for a warrant? (4) If the search was illegal, was the evidence nevertheless admissible under the “inevitable discovery” rule?

U.S. v. Paxton et al. (7th Cir. 2017) 848 F.3d 803
ISSUE: Did a group of arrestees reasonably believe that their conversation in the back of a police transport van would be private?