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CONTENTS - PAST ISSUES


(2015, 2014, 2013 only)

INDEX TO VOLUME 39 (2015)

OF THE LAW ENFORCEMENT

LEGAL REPORTER (LELR)

ARREST

United States v. Cook (9th Cir. 2015) 797 F.3d 713 – November 2015 LELR at p. 3. Search of arrestee’s backpack incident to his arrest is valid even though he is handcuffed.

Herring v. United States (2009) 172 L Ed 2d 496, January 2015 LELR at Bonus p. 20. Arrest on recalled warrant – no suppression. Not all Fourth Amendment violations require suppression of evidence. “The exclusionary rule serves to deter deliberate, reckless or grossly negligent conduct or in some circumstances recurring or systemic negligence.” “We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation."

People v. Curtis (1969) 70 Cal.2d 347, January 2015 LELR at p. 4. Forceful resistance to even an unlawful arrest is prohibited. Officers are not acting in the performance of their duties when making an unlawful arrest.

ASSAULT WITH A DEADLY WEAPON

In re D.T. (2015) 237 Cal.App.4th 693, November 2015 LELR at p. 12. “Playfully” poking victim in the back with a knife is Assault with a Deadly Weapon.

AUTO THEFT – AUTO BURGLARY

People v. Watson (2000) 22 Cal.4th 220, October 2015 LELR Bonus at p. 21. Use of bait car is not entrapment. Window of bait car can be down 3 – 4 inches.

BICYCLES

Velasquez v. Superior Court (2014) 227 Cal.App.4th 1471, February 2015 LELR at p. 14. Traffic laws, including DUI and reckless driving, apply to bicycles.

BURGLARY

Burglary. 20 burglary cases collected – February 2015 LELR at Bonus p. 20.

CRIMES AGAINST PEACE OFFICERS

(Note: see March 2015 LELR for summaries of fourteen cases of crimes against peace officers)

People v. Chance (2008) 44 Cal.4th 1164, March 2015 LELR at p. 3. Assault with a firearm upon a peace officer shown even though the officer “thwarted” the infliction of any injury.

People v. Raviart (2001) 93 Cal.App.4th 258, March 2015 LELR at p. 6. Drawing a gun to shoot officers is an assault with a firearm upon a peace officer even though officers thwarted the shooting by jumping behind a wall.

People v. Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525, March 2015 LELR at p. 9. Flight from a police officer is “willful resistance” in violation of PC 148.10. Defendant may be convicted of a felony violation of PC 148.10 if officer falls and seriously injures himself while pursuing fleeing defendant. Defendant need not personally inflict the injury.

People v. Palmer (2005) 133 Cal.App.4th 1141, March 2015 LELR at p. 12. Gunshot was proximate cause of injury when officer, dodging the shot, fell and broke an ankle. Can add 25 years to life to sentence for underlying felony.

People v. Martinez (1970) 3 Cal.App.3d 886, March 2015 LELR at p. 15. Barefoot kick on boot of motor officer is battery on a peace officer. “We are not prepared to say that a barefoot kick is unoffensive.” 3 Cal.App.3rd at p. 889.

People v. Martin (2005) 133 Cal.App.4th 776, March 2015 LELR at p. 21. Felony resisting – Penal Code section 69. Each officer is a separate victim.

People v. Iboa (2012) 207 Cal.App.4th 111, March 2015 LELR at p. 23. Penal Code section 69 shown by threatening language and threatening physical behavior alone. No actual touching is required.

In re Muhammed C. (2002) 95 Cal.App.4th 1325, March 2015 LELR at p. 27. Suspect speaking to a prisoner in the back of a police car when told not to do so is a violation of PC 148, subd.(a)(1) – resisting/delaying.

In re Alejandro (1995) 37 Cal.App.4th 44, March 2015 LELR at p. 30. Challenging an officer to fight is a PC 415 violation.

People v. Schnathorst (2004) 120 Cal.App.4th 1310, March 2015 LELR at p. 32. A peace officer can be the victim of “criminal threats” in violation of PC 422.

People v. Mosley (2007) 155 Cal.App.4th 313, March 2015 LELR at p. 35. County jail custodial officers can be victims of criminal threats – PC 422.

People v. Wilson (2010) 186 Cal.App.4th 789, March 2015 LELR at p. 38. A correctional officer in a state prison can be the victim of criminal threats – PC 422.

People v. Christopher (2006) 137 Cal.App.4th 418, March 2015 LELR at p. 43. Giving a false name to an arresting officer is a violation of both PC 148, subd.(a)(1) – resisting delaying – and PC 148.9 – false identification.

CRIMINAL THREATS

People v. Wilson (2015) 234 Cal.App.4th 193, June 2015 LELR at p. 12. Multiple threats to the same victim in one incident is one count of criminal threats. Each victim must be directly threatened.

DETENTION

People v. Brown (2015) 61 Cal.4th 968, September 2015 LELR at p. 3. Pulling behind a stopped vehicle and turning on emergency lights is a detention of the stopped vehicle. 911 report of a fight in progress with a loaded gun justifies detention of a vehicle driving from the scene of the fight.

DISSUADING A WITNESS

People v. Kirvin (2014) 231 Cal.App.4th 1507, May 2015 LELR at p. 7. Each phone call attempting to dissuade a witness is a separate count.

DRIVING UNDER THE INFLUENCE

People v. Jones (2014) 231 Cal.App.4th 1257, April 2015 LELR at p. 6. OK warrantless blood draw of DUI arrestee subject to Post Release Community Supervision (PRCS) conditions.

People v. Toure (2015) 232 Cal.App.4th 1096, June 2015 LELR at p. 3. Need not get search warrant for forcible blood draw of a combative DUI arrestee in a crash situation.

DUI WITH INJURY

People v. Walker (2014) 231 Cal.App.4th 1270, June 2015 LELR at p. 16. One crash is one count of DUI with Injury regardless of number of persons injured. Multiple separate crashes can be multiple counts of DUI with Injury. Injured persons need not be named in pleadings to get restitution.

DYING DECLARATIONS

People v. Johnson (2015) 61 Cal.4th 734, September 2015 LELR at p. 9. Statements naming shooter by dying victim admissible at trial.

ESCAPE

People v. Kunes (2014) 231 Cal.App.4th 1438, May 2015 at p. 15. Cutting off home detention GPS monitoring device and fleeing is escape by force.

EVIDENCE

People v. Leon – (2015) 61 Cal.4th 569, 601, November 2015 LELR at p.16. OK for officer to identify defendant as the man shown in a surveillance photo.

In re K.B. (2015) 238 Cal.App.4th 989, October 2015 LELR at p. 15. Incriminating photos extracted from Instagram admissible at trial. Would apply to other social media postings as well.

People v. Alvarez (2014) 229 Cal.App.4th 761, February 2015 LELR at p. 17. Police must recover and retain potentially exonerating evidence.

People v. Myers (2014) 227 Cal.App.4th 1219, May 2015 LELR at p. 12. OK to present evidence of prior similar robbery to show intent.

FALSE PERSONATION – IDENTITY THEFT

United States v. Osuna-Alvarez (9th Cir. 2015) 788 F.3d 1183, September 2015 LELR at p. 13. Use of brother’s name is a crime even though brother gave permission. Other identity theft cases discussed.

GAMBLING/SLOT MACHINES

People v. Kirnpal Grewal (2015) 61 Cal.4th 544, August 2015 LELR at p. 17. Internet café“sweepstakes” that allow participants to play gambling themed games for money meet statutory definition of “slot machine” and constitute illegal gambling.

GANG CRIMES

People v. Nguyen – (2015) 61 Cal.4th 1015, 1034-1035, November 2015 LELR at p. 17. Gang officer can testify at trial that it is common for persons present at gang crime scenes to claim “I was in the bathroom at the time” in order to avoid telling officers what they saw.

GREAT BODILY INJURY

People v. Elder (2014) 227 Cal.App.4th 411, February 2015 at p. 10. Dislocated finger is great bodily injury per PC 12022.7. GBI allegation applies even if the injury was accidentally inflicted.

HEARSAY

Ohio v. Clark (2015) 192 L Ed 2d 306, August 2015 LELR at p. 4. Nontestimonial hearsay is admissible at trial. “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. 192 L Ed 2d at p. 314. So when arriving at crime scenes, ask “What’s happening?” Not “What happened?”

IDENTITY THEFT

United States v. Osuna-Alvarez (9th Cir. 2015) 788 F.3d 1183, September 2015 LELR at p. 13. Use of brother’s name is a crime even though brother gave permission. Other identity theft cases discussed.

People v. Johnson (2012) 209 Cal.App.4th 800, September 2015 Bonus at p. 21. Use of another’s identity to obtain goods, services, etc., is identity theft. No intent to defraud and no loss to victim is necessary.

JUVENILE VICTIMS

People v. Christensen (2014) 229 Cal.App.4th 781– November 2015 LELR at p. 16. OK to excuse child molest victim from testifying at retrial.

People v. Chenault – (2014) 227 Cal.App.4th 1503, November 2015 LELR at p. 16. OK to have a support dog present during a child victim’s testimony.

LYNCHING

Penal Code section 405a. August 2015 LELR at p. 19. Unlawfully taking a prisoner from the custody of an office in violation of Penal Code section 405a is no longer called “lynching.” PC 405a and PC 405b combined into revised PC 405a.

MARIJUANA CULTIVATION

People v. Clark (2014) 230 Cal.App.4th 490, April 2015 LELR at p. 9. Officers need not determine if suspect is lawfully cultivating marijuana under the Compassionate Use Act prior to getting a search warrant for marijuana cultivation at his residence.

MIRANDA/CONFESSIONS

People v. Nguyen (2015) 61 Cal.4th 1015 – November 2015 LELR at p. 8. Statements taken after a suspect invokes his right to counsel can be used for impeachment purposes at trial. This is true even if the officer deliberately ignored the suspect’s invocation of his right to counsel in order to get statements for impeachment purposes. See also People v. Peevy (1998) 17 Cal.4th 1184, 1188 which held the same.

People v. Shamblin (2015) 236 Cal.App.4th 1, October 2015 LELR at p. 3. Invocation of Miranda rights must be unequivocal. Volunteered statements to booking officer admissible.

In re Deborah C. (1981) 30 Cal.3d 125, September 2015 LELR at p. 17. Retail store security officers need not give Miranda advisement prior to interrogation of shoplifter.

People v. Williams (2013) 56 Cal.4th 165, August 2015 LELR Bonus at p. 20. Spontaneous confession to a booking officer is admissible at trial.

People v. Elizalde (2015) 61 Cal.4th 523, August 2015 LELR at p. 10. Answers to booking questions re gang affiliation not admissible in prosecution’s case in chief at trial. Admissible for impeaching purposes.

People v. Duff (2014) 58 Cal.4th 527, April 2015 LELR at p. 3. Re-advisement is not necessary for a reasonably contemporaneous re-interrogation.

People v. Franzen (2012) 210 Cal.App.4th 1193, April 2015 Bonus Feature at p. 19. Questions asked to clarify a suspect’s volunteered remarks are not interrogation. Miranda admonition is not required.

MISTAKE OF LAW

Heien v. North Carolina (2014) 190 L Ed 2d 475, January 2015 LELR at p. 16. Mistake of law, if reasonable, will not invalidate police action based upon it.

MURDER

People v. McNally (2015) 236 Cal.App.4th 1419, October 2015 LELR at p. 9. “Horseplay” killing is second degree murder.

People v. Smith (2014) 60 Cal.4th 603, January 2015 LELR at p. 8. All participants in a gang fight are guilty of murder if any participant – or bystander – is killed.

NARCOTICS CASES

United States v. De Jesus-Casteneda – (9th Cir. 2013) 705 F.3d 1117, November 2015 LELR at p. 16. OK for informant to testify at trial wearing a false mustache, sunglasses and a wig.

United States v. Paciano Lizarraga-Tirado– (9th Cir. 2013) 789 F.3d 1107, November 2015 LELR at p.16. Google Earth satellite image and a machine generated “tack” labeled with GPS coordinates are not hearsay and are admissible at trial.

POLICE USE OF DEADLY FORCE

Mullenix v. Luna (2015) 193 L Ed 2d 255, December 2015 LELR at p. 4. OK for officer to use gunfire to attempt to disable a fleeing car in a dangerous, high-speed pursuit situation. Officer fired six shots at engine but hit driver instead. Officer protected by “qualified immunity.”

PROBATION

People v. Ebertowski (2014) 228 Cal.App.4th 1170, May 2015 LELR at p. 9. OK to get computer and electronic media passwords as a condition of probation.

PROPOSITION 47 AND SHOPLIFTING

People v. Earl (1973) 29 Cal.App.3d 894 and People v. Rocha (2013) 221 Cal.App.4th 1385, April 2015 LELR at p. 13. Proving intent to steal in shoplifting cases.

ROBBERY

United States v. Pedrin (9th Cir. 2015) 797 F.3d 792, October 2015 LELR at p. 17. Recruiting defendant to rob a narcotics stash house is permissible. He can then be charged with conspiracy to commit robbery. This is not entrapment.

People v. Myers (2014) 227 Cal.App.4th 1219, May 2015 LELR at p. 12. OK to present evidence of prior similar robbery to show intent.

SEARCH AND SEIZURE

Patel v. City of Montclair (9th Cir. 2015) 798 F.3d 895, December 2015 LELR at p. 9. Officers warrantless entry into public areas of commercial property is lawful. Not Fourth Amendment violation.

United States v. Cook (9th Cir. 2015) 797 F.3d 713 – November 2015 LELR at p. 3. Search of arrestee’s backpack incident to his arrest is valid even though he is handcuffed.

City of Los Angeles v. Patel (2015) 192 L Ed.2d 435, August 2015 LELR at p. 14. Hotel, motel, etc., must maintain guest register but need not allow police officers to examine it upon request unless exigent circumstances require immediate examination.

Carroll v. Carman (2014) 190 L Ed 2d 311, January 2015 LELR at p. 12. Officers may approach and knock on any door of a residence where members of the general public could be expected to approach and knock.

United States v. Moore (9th Cir. 2014) 77 F.3d 809, June 2015 LELR at p. 8. Co-occupant’s consent search is valid unless another co-occupant is physically present and expressly refuses to allow the search.

Fernandez v. California (2014) 188 L Ed 2d 25, June 2015 LELR at Bonus Feature p. 19. Co-occupant’s consent search is valid unless another co-occupant is physically present and objects. Refusal to consent by co-occupant who is lawfully removed from premises does not prevent remaining co-occupant from giving consent to search.

SEARCH WARRANTS

People v. Castillo (2014) 228 Cal.App.4th 414, February 2015 LELR at p. 3. OK to detain occupants of premises during service of a search warrant. OK to ask occupants questions without a Miranda advisement and waiver unless they have been arrested.

SENTENCING

People v. Ebertowski (2014) 228 Cal.App.4th 1170, May 2015 LELR at p. 9. OK to get computer and electronic media passwords as a condition of probation.

SCHOOL SETTING – DISRUPTIVE STUDENT

In re J.C. (2014) 228 Cal.App.4th 1394, February 2015 LELR at p. 6. Student who causes a disturbance at school and resists an officer may be charged with resisting an officer and disturbing a public school.

SHOPLIFTING AND PROPOSITION 47

People v. Earl (1973) 29 Cal.App.3d 894 and People v. Rocha (2013) 221 Cal.App.4th 1385, April 2015 LELR at p. 13. Proving intent to steal in shoplifting cases.

TESTIFYING

Courtroom Demeanor and Testifying. November 2015 LELR Bonus at p. 18.

THEFT

People v. Acosta (2014) 226 Cal.App.4th 108, May 2015 LELR at p. 17. Theft of fixtures from foreclosed property is a violation of Penal Code section 502.5.

TRAFFIC

Velasquez v. Superior Court (2014) 227 Cal.App.4th 1471, February 2015 LELR at p. 14. Traffic laws, including DUI and reckless driving, apply to bicycles.

TRIAL RELATED CASES

United States v. Chadwell (9th Cir. 2015) 798 F.3d 910, December 2015 LELR at p. 12. OK for jurors, during deliberations, to watch a DVD of a car search previously shown in open court during the trial.

People v. Christensen (2014) 229 Cal.App.4th 781, November 2015 LELR at p.16. OK to excuse child molest victim from testifying at retrial.

People v. Chenault – (2014) 227 Cal.App.4th 1503, November 2015 LELR at p. 16. OK to have a support dog present during a child victim’s testimony.

People v. Salazar – (2014) 227 Cal.App.4th 1078, November 2015 LELR at p. 16. OK to reopen trial to permit additional argument to a hung jury.

United States v. De Jesus-Casteneda – (9th Cir. 2013) 705 F.3d 1117, November 2015 LELR at p. 16. OK for informant to testify at trial wearing a false mustache, sunglasses and a wig.

United States v. Paciano Lizarraga-Tirado– (9th Cir. 2013) 789 F.3d 1107, November 2015 LELR at p.16. Google Earth satellite image and a machine generated “tack” labeled with GPS coordinates are not hearsay and are admissible at trial.

People v. Leon – (2015) 61 Cal.4th 569, 601, November 2015 LELR at p.16. OK for officer to identify defendant as the man shown in a surveillance photo.

People v. Nguyen – (2015) 61 Cal.4th 1015, 1034-1035, November 2015 LELR at p. 17. Gang officer can testify at trial that it is common for persons present at gang crime scenes to claim “I was in the bathroom at the time” in order to avoid telling officers what they saw.

VEHICLE STOPS AND SEARCHES

Mullenix v. Luna (2015) 193 L Ed 2d 255, December 2015 LELR at p. 3. OK for officer to use gunfire to attempt to disable a fleeing car in a dangerous, high-speed pursuit situation. Officer fired six shots at engine but hit driver instead. Officer protected by “qualified immunity.”

People v. Brown (2015) 61 Cal.4th 968, September 2015 LELR at p. 3. Pulling behind a stopped vehicle and turning on emergency lights is a detention of the stopped vehicle. 911 report of a fight in progress with a loaded gun justifies detention of a vehicle driving from the scene of the fight.

United States v. Scott (9th Cir. 2012) 705 F.3d 410, July 2015 LELR at p. 6. An immediate – or a delayed – warrantless search on probable cause to believe evidence is in a vehicle is lawful.

Rodriguez v. United States (2015) 191 L Ed 2d 492, May 2015 LELR at p. 3. Can’t prolong a traffic stop to conduct a dog sniff for drugs.

United States v. Evans (9th Cir.2015) 786 F 3d 779, July 2015 LELR at p. 1. Can’t prolong traffic stops beyond time reasonably necessary to process the traffic violation unless independent grounds for extra time is shown. Follows Rodriguez, above.

Florida v. Harris (2013) 185 L Ed 2d 61, July 2015 LELR at p. 12. Drug alert by trained dog justifies an immediate vehicle search.

United States v. Arvizu (2002) 151 L Ed 2d 740, July 2015 at p. 19. Auto stop valid on “reasonable suspicion” of traffic violation or unlawful activity.

In re Arturo D. (2002) 27 Cal.4th 60, July 2015 LELR at p. 24. Police can search sun visors, glove box and under front seat when driver does not produce registration or driver’s license.

United States v. Burkett (9th Cir. 2010) 612 F.3d 1103, July 2015 at p. 30. Furtive movements justify pat down of passenger.

Navarette v. California (2014) 188 L Ed 2d 680, July 2015 LELR at p. 34. OK to traffic stop a car based upon an anonymous 911 caller’s report of erratic driving.

United States v. Smith (9th Cir. 2005) 389 F.3d 944, July 2015 LELR at p. 39. Search incident to arrest is valid if officers have probable cause to arrest even if they don’t tell person he or she is under arrest.

Arizona v. Johnson (2009) 172 L Ed 2d 694, July 2015 LELR at p. 41. OK to pat down an occupant reasonably believed to be armed regardless of reason for car stop. OK to order occupants to exit car.

People v. Vibanco (2009) 151 Cal.App.4th 1, July 2015 LELR at p. 48. Police can order the occupants of a lawfully stopped car to exit the car, to sit on the curb, or to remain in the car.

People v. Fitzpatrick (1970) 3 Cal.App.3d 824, July 2015 at p. 53. Odor of burnt marijuana in car or on driver gives probable cause to arrest driver and search car.

People v. Dowl (2013) 57 Cal.4th 1079, July 2015 LELR at p. 55. Medical marijuana prescription does not preclude prosecution for transportation and possession of marijuana for sale. Odor of burnt marijuana in lawfully stopped car gives probable cause to believe more marijuana is present.

Arizona v. Gant (2009) 173 L Ed 2d 485, July 2015 LELR at p. 8. Car search incident to arrest of occupant is limited.

United States v. Scott (9th Cir. 2012) 705 F.3d 410, July 2015 LELR at p. 6. An immediate – or a delayed – warrantless search on probable cause to believe evidence is in a vehicle is lawful.

In re Raymond C. (2008) 45 Cal.4th 303, May 2015 LELR Bonus Feature at p. 20. OK to stop a car if no rear plate and no temporary permit is visible to a following police car.

WITNESSES

People v. Kirvin (2014) 231 Cal.App.4th 1507, May 2015 LELR at p. 7. Each phone call attempting to dissuade a witness is a separate count.

INDEX TO VOLUME 38 (2014)
OF THE LAW ENFORCEMENT
LEGAL REPORTER (LELR)

354 Cases Every Peace Officer, Prosecutor and Judge Should Know. February 2014 LELR, entire issue.

ARREST

People v. Rios (1953) 46 Cal.2d 297, June 2014 LELR at Bonus p. 20. OK to arrest a person who admits the past commission of a crime. “From defendant’s admission that he had taken an injection of heroin two weeks before, it could be inferred that he had possessed heroin in violation of [then] Health and Safety Code section 11500.” 46 Cal.2d at p. 298.

People v. Burton (2013) 219 Cal.Ap.4th Supp. 9, May 2014 LELR at p. 2. Officers may arrest for a misdemeanor not committed in their presence so long as they have probable cause for the arrest.

People v. Adams (1985) 175 Cal.App.3d 855, March 2014 LELR at p. 7. Search valid as incident to an arrest when officer had probable cause to arrest even though he characterized his stop as a detention. “The fact defendant was not formally arrested until after the search does not invalidate the search if probable cause to arrest existed prior to the search and the search was substantially contemporaneous with the arrest.” 175 Cal.App.3d at p. 861.

BURGLARY

In re Gary F. (2014) 226 Cal.App.4th 1076, October 2014 LELR at p. 8. Outside lookout is guilty of residential burglary as an aider and abettor.

People v. Tessman (2014) 223 Cal.App.4th 1293, September 2014 at p. 3. A “for sale open house” is an inhabited dwelling. Entering a pawnshop to sell stolen goods is a burglary.

People v. Harris (2014) 224 Cal.App.4th 86, August 2014 LELR at p. 7. Attached garage is part of a residence even if no connecting door. “Occupant present” allegation applies even if burglar enters only the garage if an occupant is present in the residence. “There is no requirement of an interior connecting door before a room such as a garage may be treated as part of a residence. A garage sharing a roof and a wall with a residence is part of an inhabited dwelling even though there is no interior access. This is true even for multiunit structures.” 224 Cal.App.4th 86, interior cites omitted.

People v. Rocha (2013) 221 Cal.App.4th 1385, June 2014 LELR at p. 9. OK to introduce evidence of prior burglaries in present burglary case to show intent to steal. Many case examples given.

In re O.D. (2013) 221 Cal.App.4th 1001, April 2014 LELR at p. 20. A single fingerprint of defendant on window of burgled premises is sufficient for a burglary conviction. “Several cases have held that evidence of a fingerprint, palm print, or footprint left inside a structure or at a point of unusual access is alone sufficient to support a burglary conviction.” 221 Cal.App.4th at p. 1010.

CARJACKING

People v. Lipsett (2014) 223 Cal.App.4th 1060, June 2014 LELR at p. 2. Carjacking includes motorcycles.

CELL PHONE SEARCH

Riley v. California (2014) 189 L Ed 2d 430, August 2014 LELR at p. 3. Officers must obtain a search warrant to access the contents of a cell phone found on an arrestee. Exigent circumstances and consent exceptions apply.

CHILD ENDANGERMENT

People v. Valdez (2002) 27 Cal.4th 778, August 2014 LELR at p. 19. Leaving a child unattended in a closed car on a hot day is child endangerment - - PC 273a, subd.(a). If child dies, it is manslaughter – PC 192, subd.(b).

CRIMINAL THREATS

People v. Chandler (2014) 60 Cal.4th 508, October 2014 LELR at p. 13. Attempted criminal threats is a crime.

People v. Lipsett (2014) 223 Cal.App.4th 1060, June 2014 LELR at p. 2. Yelling “shoot him, shoot him” to accomplice during motorcycle carjacking when victim is resisting is a criminal threat.

DEADLY WEAPONS

People v. Brown (2014) 227 Cal.Ap.4th 451. November 2014 LELR at p. 14. Possession of a shotgun under 26 inches overall length is unlawful even if kept in personal residence.

DETENTION

United States v. Edwards (9th Cir. 2014) 761 F.3d 977, December 2014 LELR at p. 3. An anonymous 911 call justifies detention and patdown when contemporaneously reporting gunshots by a described suspect at a described location.

In re Frank V. (1991) 233 Cal.App.3d 1232, September 2014 LELR Bonus at p. 20. OK to order persons to show their hands during police contact.

People v. Turner (2013) 219 Cal.App.4th 151, April 2014 LELR at p. 13. OK to detain a man who threatened a high school coach and was said to be carrying a gun.

People v. Barnes (2013) 216 Cal.App.4th 1508, January 2014 LELR at p. 6. OK to use GPS tracking of stolen cellphone to locate and detain a suspected robbery. “The officers could certainly infer a reasonable possibility that if they could locate the phone they would also locate the robber.” 216 Cal.App.4th at p. 1520.

DETENTION AND DEMAND FOR IDENTIFICATION

Hiibel v. Sixth Judicial District of Nevada (2004) 542 U.S. 177, 159 L Ed 2d 292, November 2014 LELR at p. 3. Lawfully detained person must give name if relevant to circumstances of detention. Refusal to give name is violation of PC 148.

Tsao v. Desert Palace (9th Cir. 2014) 698 F.3d 1128, November 2014 LELR at p. 9. Lawfully detained person must give name if relevant to circumstances of detention. Refusal to give name is violation of PC 148.

DRIVING UNDER THE INFLUENCE

Hoberman-Kelly v. Valverde (2013) 213 Cal.App.4th 626, July 2014 LELR at p. 15. “Mechanical reading” of blood test admonition is insufficient. DUI arrestee clearly did not understand it.

People v. Vangelder (2013) 58 Cal.4th 1, January 2014 LELR at p. 16. Defense expert cannot testify as to partition ratio or inherent unreliability of Breathalyzer machine as to 23152(b) charge.

EVIDENCE

People v. Hajek and Vo (2014) 58 Cal.4th 1144, September 2014 LELR at p. 12. Tape recording of defendants’ conversation after arrest is admissible at trial even though portions of the recording are inaudible and unintelligible.

FELON WITH BODY ARMOR

In re Perdue (2013) 221 Cal.App.4th 1070, June 2014 LELR at p. 14. Felon in possession of body armor is a valid charge. Body armor is “any bullet resistant material intended to provide ballistic and trauma protection for the person wearing the body armor.” PC 31360 and PC 16288. This includes “hillbilly armor.”

GASSING

In re A.M. (2014) 225 Cal.App.4th 1075, September 2014 LELR at p. 6. “Gassing” – Penal Code section 243.9. Gassing includes spitting.

MIRANDA/CONFESSIONS

People v. McCurdy (2014) 59 Cal.4th 1064, December 2014 LELR at p. 7. Invocation of Miranda rights must be unequivocal. Officers may interrogate a suspect who invoked his Miranda rights but then reinitiates conversation with officers.

People v. Tom (2014) 59 Cal.4th 1210, October 2014 LELR at p. 5. Post-arrest, pre-Miranda silence may be admissible at trial as evidence of guilt. Suspect spoke of many things but did not ask about victims of car crash.

People v. Hajek and Vo (2014) 58 Cal.4th 1144, September 2014 LELR at p. 12. Tape recording of defendants’ conversation after arrest is admissible at trial even though portions of the recording are inaudible and unintelligible.

Hernandez v. Holland (9th Cir. 2014) 750 F.3d 843, September 2014 LELR at p. 9. Volunteered incriminating statements by defendant to court bailiff during trial is admissible at trial.

People v. Duff (2014) 58 Cal.4th 527, July 2014 LELR at p. 7. Officers may clarify initial possible invocation of Miranda rights. New advisement not necessary for second reasonably contemporaneous interview. Suggested advisement set forth.

People v. Davidson (2013) 221 Cal.App.4th 966, March 2014 LELR at p. 2. Brief on the scene questions do not require a Miranda admonishment. “Handcuffing a suspect during an investigative detention does not automatically make it a custodial interrogation for purposes of Miranda.” 221 Cal.App.4th at p. 972.

United States v. Botello-Rosales (9th Cir. 2013) 728 F.3d 865, January 2014 LELR at p. 2. Read Spanish language Miranda admonition off a card. Introduce the card into evidence in court. This will prevent possible mistranslation in court.

United States v. Clymer (9th Cir. 2013) 52 Fed.Appx 354, January 2014 LELR at p. 4. Context of interrogation showed suspect was in custody despite officers saying, “You’re not under arrest.”

In re Kenneth S. (2005) 133 Cal.App.4th 54, January 2014 LELR Bonus at p. 19. Miranda does not apply if the suspect is told he is free to go. “But even a clear statement from an officer that the person under interrogation is a suspect is not, in itself, dispositive of the custody issue.” 133 Cal.App.4th at p. 64.

MISDEMEANORS

People v. Burton (2013) 219 Cal.Ap.4th Supp. 9, May 2014 LELR at p. 2. Officers may arrest for a misdemeanor not committed in their presence so long as they have probable cause for the arrest

NARCOTICS

People v. Bautista (2014) 223 Cal.App.4th 1096, June 2014 LELR at p. 6. 10.33 grams of heroin can be charged as possession for sale.

PAROLE VIOLATION

United States v. Hilger (9th Cir. 2013) 728 F.3d 947, January 2014 LELR at p. 10. An uncorroborated confession alone is a sufficient basis for a parole – or probation – violation. Parole and probation violations need be shown by a preponderance of evidence only, not by proof beyond a reasonable doubt.

POLICE USE OF DEADLY FORCE

Case law regarding police use of deadly force against a fleeing felon. September 2014 LELR at p. 15.

PRELIMINARY HEARINGS

Sims v. Superior Court (1993) 18 Cal.App.4th 463, January 2014 LELR at p. 13. Non-sworn officer can offer hearsay testimony at preliminary hearings. See also Penal Code section 872, subd.(c).

RESISTING AN OFFICER

People v. Bernal (2013) 222 Cal.App.4th 512, May 2014 LELR at p. 7. Attempting to escape from an officer by forcibly pulling away from him is a violation of Penal Code section 69. Penal Code section 69 and Penal Code section 148 distinguished.

ROBBERY

People v. Burns (2009) 172 Cal.App.4th 1251, March 2014 LELR at p. 18. Purse snatch can be a robbery. “In this case, [defendant Burns] came up to [victim] and grabbed the purse she was holding; she tried to hold onto it but his strength and his act in stepping on her foot overcame her resistance, and he got away with the purse. That was robbery. . .” 172 Cal.App.4th at p. 1259.

SCHOOL SEARCHES

In re J. D. (2014) 225 Cal.App.4th 709. October 2014 LELR at p. 16. OK to search school lockers on report of gun use by student near campus.

New Jersey v. T.L.O. (1985) 469 U.S. 325, October 2014 Bonus at pp. 21 and 25. School search valid based upon reasonable suspicion search will turn up evidence of violation of law or rules of school. Exclusionary rule does not apply to school searches by school authorities including school police.

In re K.S. (2010) 183 Cal.App.4th 72. October 2014 LELR at p. 28. School official can search on reasonable suspicion even if a peace officer is present.

SEARCH AND SEIZURE

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, November 2014 LELR at p. 17. Defendant must show “standing” to object to a search. Disclaimer of ownership negates standing.

In re Frank V. (1991) 233 Cal.App.3d 1232, September 2014 LELR Bonus at p. 20. OK to order persons to show their hands during police contact.

United States v. King (9th Cir. 2013) 736 F.3d 805, April 2014 LELR at p. 9. Suspicionless search of suspect with a probation consent search condition is valid. This decision supersedes the prior decision in this case appearing in the September 2013 LELR.

Fernandez v. California (2014) 188 L Ed 2d 25, April 2014 LELR at p. 2. Co-occupant’s consent search is valid unless another co-occupant is present and objects. Many consent search cases discussed. This decision supersedes and reverses the prior decision on this case appearing in the January 2013 LELR.

Georgia v. Randolph (2006) 164 L Ed 2d 208, April 2014 LELR Bonus at p. 24. Consent search cannot be conducted if co-occupant who is present objects. Many exceptions.

People v. Adams (1985) 175 Cal.App.3d 855, March 2014 LELR at p. 7. Search valid as incident to an arrest when officer had probable cause to arrest even though he characterized his stop as a detention. “The fact defendant was not formally arrested until after the search does not invalidate the search if probable cause to arrest existed prior to the search and the search was substantially contemporaneous with the arrest.” 175 Cal.App.3d at p. 861.

United States v. Tosti (9th Cir. 2013) 733 F.3d 817, March 2014 LELR at p. 11. OK for officers to view pornography found by computer repairman. Wife can give consent to search home computer shared with husband. “It is well established that a person with common authority over property can consent to a search of that property without the permission of the other persons with whom he shares that authority.” 733 F.3d at p. 823. But if other person is present and denies consent to search, then a warrantless consent search cannot be conducted.

Patel v. City of Los Angeles (9th Cir. 2013) 738 F.3d 1058, March 2014 LELR at p. 14. Officers must obtain consent to inspect hotel guest register. Exigent circumstances exception can apply – such as hot pursuit of dangerous fleeing felon. This decision supersedes and reverses prior decision on this case summarized in the October 2012 LELR.

People v. Barnes (2013) 216 Cal.App.4th 1509, March 2014 LELR at p. 17. A defendant has no standing to object to the search of stolen property in his possession.

SEARCH WARRANTS

People v. Carrington (2009) 47 Cal.4th 145, November 2014 LELR at p. 22. Four principles of search warrant preparation and execution set forth. Probable cause to believe suspect committed a felony gives probable cause for a search warrant for his residence for fruits, evidence and instrumentalities of the felony.

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, November 2014 LELR at p. 17. Evidence of a murder is likely to be at suspect’s residence despite passage of one month. Warrant not “stale.”

Search Warrant for Deadly Weapon in Possession of a W & I Code section 5150 Detainee. Officers may obtain a search warrant for firearms and other deadly weapons in possession of a W & I Code section 5150 detainee. See Penal Code section 1524, subd.(a)(10). September 2014 LELR at p. 19.

TAMPERING WITH A CONSUMER PRODUCT

United States v. Lyle (9th Cir. 2014) 742 F.3d 434, June 2014 LELR at p. 17. Opening a box and removing product from it and then closing and regluing the now empty box and placing it back on the store shelf for sale is “tampering with a consumer product” in violation of 18 U.S. Code section 1365(a) when doing so places another person in danger of bodily injury.

TERRORIST ACTS

Terrorist Acts within the United States: The rules of detention and search and seizure would likely be relaxed in situations involving threats of terrorism and acts of terrorism. October 2014 LELR at p. 3.

THEFT

People v. Whitmer (2014) 59 Cal.4th 733, October 2014 LELR at p. 11. Multiple acts of theft can be charged as separate thefts even if pursuant to a single plan. Overrules contrary Court of Appeal cases.

TRAFFIC STOPS

People v. Goldsmith (2014) 59 Cal.4th 258 and People v. Gray (2014) 58 Cal.4th 901, September 2014 LELR at p.18. Red light camera tickets are lawful.

People v. Suff (2014) 58 Cal.4th 1013, August 2014 LELR at p. 14. Car stopped at red light must signal before turning if another car is behind it. Also - “Both the approach for a right-hand turn and a right-hand turn shall be made as close as practicable to the right-hand curb or edge of the roadway.. . .” VC 22100, subd.(a).

VEHICLE PURSUITS

Plumhoff v. Rickard (2014) 188 L Ed 2d 1956, July 2014 LELR at p. 2. Officers may shoot fleeing dangerous driver. “A police officer’s attempt to terminate a dangerous high-speed chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Slip Opinion at pp. 9-10. “Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.” Slip Opinion at p. 10. See also Scott v. Harris, below.

Scott v. Harris (2007) 167 L Ed 2d 686, July 2014 LELR at Bonus p. 24. OK to ram fleeing car in a dangerous high speed pursuit.

VEHICLE STOPS AND SEARCHES

People v. Suff (2014) 58 Cal.4th 1013, August 2014 LELR at p. 14. Car stopped at red light must signal before during if another car is behind it. Also - “Both the approach for a right-hand turn and a right-hand turn shall be made as close as practicable to the right-hand curb or edge of the roadway.. . .” VC 22100, subd.(a).

People v. Waxler (2014) 224 Cal.App.4th 712, August 2014 LELR at p. 10. OK to search a car based upon a burnt marijuana odor despite driver having a marijuana prescription card. See also People v. Strasburg, below.

People v. Strasburg (2007) 148 Cal.App.4th 1052, August 2014 LELR at Bonus p. 20. OK to search a car based upon the odor of burning marijuana despite driver having a medical marijuana card. “An officer with probable cause to search is not prevented from doing so by someone presenting a medical marijuana card or a marijuana prescription. Given the probable cause here, the officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession.” 148 Cal.App.4th at p. 1060.

Green v. San Francisco Police Department (9th Cir. 2014) 751 F.3d 1039, July 2014 LELR at p. 21. Car stop based solely upon an Automatic License Plate Reader (ALPR) hit was unreasonable. Must verify license plate read was correctly by the ALPR and the car is stolen. Exigent circumstances exception can apply.

Navarette v. California (2014) 188 L Ed 2d 680, May 2014 LELR at p. 12. OK to traffic stop a car based upon an anonymous 911 caller’s report of an erratic driver. See also People v. Wells, below.

People v. Wells (2006) 38 Cal.4th 1078, May 2014 Bonus at p. 17. OK to traffic stop a car based upon an anonymous call reporting erratic driving. Officer need not see erratic driving himself. See also Lowry v. Gutierrez (2005) 129 Cal.App.4th 926, appearing in the October 2005 LELR. (end)

INDEX TO VOLUME 37 (2013) OF
LAW ENFORCEMENT
LEGAL REPORTER (LELR)

ACCESSORY

People v. Nuckles (2013) 56 Cal.4th 601, August 2013 LELE at p. 8. Person who aids absconding parolee’s escape or hiding out is chargeable as an accessory – PC 32.

ASSAULT WITH A DEADLY WEAPON

People v. Aznavoleh (2012) 210 Cal.App.4th 1181, April 2013 LELR at p. 9. A street racer who crashes and causes injury has committed assault with a deadly weapon. “The primary issue in this case is whether a driver who deliberately races through a red light at a busy intersection and collides with another vehicle, causing injury to another, can be convicted of assault with a deadly weapon. The answer is yes.” 210 Cal..App.4th at p. 1183.

People v. Brown (2012) 210 Cal.App.4th 1, March 2013 LELR at p. 12. A BB gun can be a deadly weapon.

BAIL

Penal Code section 1275.1, June 2013 LELR at p. 19. PC 1275.1 sets forth a procedure whereby a defendant must prove that any money used to post bail or purchase a bail bond was not feloniously obtained.

“BASH MOB” CRIMES

Crimes typically committed by members of a bash mob are listed.

BOOKING PROCEDURES - DNA

Maryland v. King (2013) 186 L Ed 2d 1, July 2013 LELR at p. 16. Collection of DNA buccal sample at booking of felony arrestees is constitutional. The California buccal sample collection law was found to be constitutional by the California Court of Appeal in the case of People v. King (2000) 82 Cal.App.4th 1363.

BURGLARY

In re M. A. (2012) 209 Cal.App.4th 317, February 2013 LELR at p. 10. Invited guest who enters a closet to steal items has committed residential burglary. Other residential burglary cases discussed.

People v. Little (2012) 206 Cal.App.4th 1364, January 2013 LELR at p. 1. A “for sale” open house is an inhabited dwelling for burglary purposes.

CRIMINAL THREATS – THREATENING PUBLIC OFFICIALS

People v. Avila (2013) 212 Cal.App.4th 819, September 2013 LELR at p. 10. Prisoner with no stated release date can be convicted of threatening a public official – PC 76. Criminal Threat – PC 422 – cases also listed and discussed.

DEADLY WEAPONS (see also Weapons, below)

People v. Pellecer (2013) 215 Cal.App.4th 508, July 2013 LELR at p. 10. A dirk or dagger carried inside a backpack is not “upon the person.” So it is not a violation of PC 21310 (formerly PC 12020, subd.(a)(4).

People v. Davis (2013) 214 Cal.App.4th 1322, June 2013 LELR at p. 7. A modified baseball bat can be a billy club (now PC 22210, formerly PC 12020). “Here, the bat had been modified in a way the jury could reasonably conclude made it more useful as a weapon: the holes in its handle could reasonably be seen to make it easier to grip, and the strap could make it easier to carry and to swing.” 214 Cal.App.4th at pp. 1328-1329.

DETENTION AND PAT DOWN

People v. Lindsey (2007) 148 Cal.App.4th 1390, October 2013 LELR Bonus at p. 18. An anonymous telephone call contemporaneously reporting dangerous conduct can justify a detention and pat down. In this case, caller described a man she had just seen shoot a gun in a public area.

In re Richard G. (2009) 173 Cal.App.4th 1252, May 2013 LELR at p. 18. OK to detain a suspect based upon an anonymous telephone call. OK to prosecute a suspect for crimes committed during even an unlawful detention. “An individual’s decision to commit a new and distinct crime, even if made during or immediately after an unlawful detention, is an intervening act sufficient to purge the ‘taint’ of a theoretical illegal detention.” 173 Cal.App.4th at p. 1262.

People v. Osborne (2009) 175 Cal.App.4th 1052, April 2013 Bonus at p. 1. OK to stop and frisk a suspected auto burglar. “It is reasonable for an officer to believe that a burglar may be armed with weapons, or tools such as knives and screwdrivers which could be used as weapons, and that a pat-down search is necessary for the officer’s safety.” 175 Cal.App.4th at pp. 1060-1061.

DISRUPTIVE DEFENDANT People v. Mayham (2013) 212 Cal.App.4th 847, December 2013 LELR at p. . Disruptive defendant may be removed from the courtroom even if no video or audio feed is available in the lockup.

DISTURBING THE PEACE

In re Curtis S. (2013) 215 Cal.App.4th 758, August 2013 LELE at p. 3. Loud words and aggressive gestures provoking danger of imminent violence chargeable as disturbing the peace.

DRIVING UNDER THE INFLUENCE

Missouri v. McNeely (2013) 195 L Ed 2d 696, May 2013 LELR at p. 2. Officers must get a search warrant to draw blood from a routine DUI arrestee who refuses to submit to a blood alcohol test. “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” 185 L Ed 2d at p. 707.

Missouri v. McNeely (2013) 195 L Ed 2d 696, October 2013 LELR Extra at p. 1. Template for search warrant for forcibly taking a blood sample from a DUI arrestee who refuses to submit to a blood test is set forth.

DRUG DETECTING DOG USE

Florida v. Jardines (2013) 185 L Ed 2d 496, May 2013 LELR at p. 7. Officer cannot take a drug sniffing dog to the front door of a residence without a search warrant.

Florida v. Harris (2013) 185 L Ed 2d 61, March 2013 LELR at p. 16. Drug alert by a trained dog on a lawfully stopped vehicle justifies an immediate search of the vehicle.

EVIDENCE

People v. Zavala (2013) 216 Cal.App.4th 242, October 2013 LELR at p. 15. Cellphone call records – and printouts thereof – maintained by the cellphone service provider are admissible in court as business records. Can show calls made between defendant and accomplices during a crime.

EXCESSIVE LOSS ENHANCEMENTS

Penal Code section 12022.6, June 2013 LELR at p. 20. PC 12022.6 sets forth enhanced penalties based upon loss suffered by victims. Any loss above $65,000 can result in an enhanced sentence from one year up to four years for a loss of $3,200,000 or more.

EXIGENT CIRCUMSTANCES ENTRY

United States v. Snipe (9th Cir. 2008) 515 F.3d 947, July 2013 LELR Bonus at p. 17. Anonymous and excited 911 call to “get the cops here now” and giving a street address justifies exigent circumstances entry into the residence at the address given. . “We will not impose a duty of inquiry on the police to separate a true cry for help from a less deserving call for attention because the delay may cost lives that could have been saved by an immediate police response. The possibility that immediate police action will prevent injury or death outweighs the inconvenience we suffer when the police interruptour ordinary routines in response to what turns out to be a non-emergency call.” 515 F.3d at pp. 953-954.

EXTORTION

People v. Fisher (2013) 216 Cal.App.4th 212, August 2013 LELE at p. 11. “Give me a job or I’ll vandalize your business” is extortion.

FALSE IMPRISOMENT

People v. Islas (2012) 210 Cal.App.4th 116, April 2013 LELR at p. 13. False imprisonment by intimidation is a felony. No express threats or weapons necessary.“An express or implied threat of harm does not require the use of a deadly weapon or an express verbal threat to do additional harm. Threats can be exhibited in a myriad number of ways, verbally and by conduct.” 210 Cal.App.4th at pp. 125-126.

FORGERY/FRAUD

People v. Dunbar (2012) 209 Cal.App.4th 114, May 2013 LELR at p. 14. Forged or altered entries with intent to defraud into “any book of records” of private and/or public corporations violates Penal Code section 71. This would be applicable in the case of dishonest employees changing records.

GANG CRIMES/ATTEMPTED MURDER

People v. Lisea (2013) 213 Cal.App.4th 408, June 2013 LELR at p. 14. An aider and abettor to a gang crime is a “principal” under the natural and probable consequences doctrine. Can be found guilty of attempted murder – or murder – committed by a fellow gang member during a fight between two gangs. . “The only requirement is that the aider and abettor intend to facilitate the target offense and that the offense ultimately committed is the natural and probable consequence of the target offense.” 213 Cal.App.4th at p. 416.

GRAND THEFT PERSON

In re Curtis S. (2013) 215 Cal.App.4th 758, August 2013 LELE at p. 3. Snatching cell phone off victim’s lap is grand theft person.

GREAT BODILY INJURY

People v. Wade (2012) 204 Cal.App.4th, February 2013 LELR at p. 18. Proof of great and/or serious bodily injury does not require medical treatment.

IDENTITY THEFT/FORGERY

People v. Barba (2012) 211 Cal.App.4th 214, May 2013 LELR at p. 10. Presentation of a stolen check is chargeable both as forgery and as identity theft.

People v. Johnson (2012) 209 Cal.App.4th 800, March 2013 LELR at p. 2. Use of another’s identity to obtain goods, services, etc., is identity theft. No intent to defraud and no loss to victim need be shown.

People v. Hagedorn (2005) 127 Cal.App.4th 734, March 2013 LELR Bonus at p. 1. Use of another’s identity to obtain goods, services, etc., is identity theft. No loss to victim or intent to defraud need by shown.

People v. Bell (2011) 197 Cal.App.4th 822, January 2013 LELR at p. 16. Apartment rental under a false name and non-payment of rent is identity theft and grand theft.

KIDNAPPING

People v. Robertson (2012) 208 Cal.App.4th 965, April 2013 LELR at p. 2. Short distance movement – within the confines of a garage – and increased risk of harm supports a conviction for kidnapping for rape – PC 209. Numerous other aggravated kidnapping cases discussed.

MIRANDA/CONFESSIONS

Lujan v. Garcia (9th Cir. 2013) 734 F.3d 917, December 2013 LELR at p. 8. Do not give a Miranda admonition by memory. Read it off a card.

Salinas v. Texas (2013) 186 L Ed 2d 376, July 2013 LELR at p. 2. Silence in response to questions suggestive of guilt in a non-custodial setting is admissible in court as consciousness of guilt. Officers should make note of questions which a suspect does not answer.

Cunningham v. Wong (9th Cir. 2013) 704 F.3d 1143, July 2013 LELR at p. 6. A suspect can withdraw his invocation of his Miranda rights and be questioned by officers. Suspect must waive rights previously invoked.

People v. Williams (2013) 56 Cal.4th 165, June 2013 LELR at p. 10. “Booking questions exception” applied. Miranda does not apply to routine booking questions. Statements made in response to routine booking questions can be admissible in court. Custodial facility intake officers can also ask questions to clarify statements made by or questions asked by prisoners. Answers admissible in court.

People v. Franzen (2012) 210 Cal.App.4th 1193, March 2013 LELR at p. 6. Questions asked to clarify a suspect’s volunteered remarks are not interrogation. Miranda admonition is not required. If an arrestee suddenly says, “I wish I hadn’t done it,” and the officer to whom he is speaking responds, “Done what?,” the prisoner has hardly been interrogated as most people would understand that term, even if it would appear on reflection that he was probably referring to the conduct that got him arrested. . . . The officer is simply giving a normal response to the arrestee’s conversational opening. This is not interrogation as commonly understood or as contemplated by [Miranda]. 210 Cal.App.4th at p. 1203.

MURDER

People v. Mejia (2012) 211 Cal.App.4th 586, August 2013 LELE at p. 16. Residential burglars all guilty of “provocative act murder” of accomplice shot by intended residential burglary victim. “Provocative act murder” explained.


People v. Lisea (2013) 213 Cal.App.4th 408, June 2013 LELR at p. 14. An aider and abettor to a gang crime is a “principal” under the natural and probable consequences doctrine. Can be found guilty of attempted murder – or murder – committed by a fellow gang member during a fight between two gangs. “The only requirement is that the aider and abettor intend to facilitate the target offense and that the offense ultimately committed is the natural and probable consequence of the target offense.” 213 Cal.App.4th at p. 416.

People v. Baker-Riley (2012) 207 Cal.App.4th 631, February 2013 LELR at p. 13. A robber can be convicted of the murder of his accomplice when the robbery victim fights back and kills the accomplice. Several “provocative act murder doctrine” scenarios set forth.

POLICE USE OF DEADLY FORCE

Gonzalez v. City of Anaheim (9th Cir. 2013) 715 F.3d 766, September 2013 LELR at p. 15. OK to shoot a fleeing motorist endangering an officer. In this case, an officer was sitting sideways in the front passenger seat as the driver began to speed away. Use of deadly force by officers discussed.

Brosseau v. Haugen (2004) 160 L Ed 2d 583, September 2013 LELR Bonus at p. 20. OK for an officer to shoot a dangerous fleeing motorist in the back. In this case, the officer was outside the car as the defendant began to speed off with numerous other vehicles and persons nearby. “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” 160 L Ed 2d at p. 589

ROBBERY

People v. Bradford (2010) 187 Cal.App.4th 1345, August 2013 LELE Bonus at p.21. Shoplifter who fights with mall security guards while trying to flee with stolen property can be charged with robbery of the guards. Each guard is a separate victim. “Estes robbery” explained. “A defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim’s presence.” 187 Cal.App.4th at p. 1349.

People v. Hodges (2013) 213 Cal.App.4th 531, August 2013 LELE at p. 13. “Estes robbery” does not apply if stolen gods are dropped or surrendered before force is used to escape. “Estes robbery” applies only if thief is still in possession of the stolen goods when he uses force or fear against the owner – including store clerks and security guards – of the stolen property.

SEARCH AND SEIZURE

Stanton v. Sims (2013) 187 L Ed 2d 341, December 2013 LELR at p. : Hot pursuit entry for a misdemeanor offense is lawful.

People v. Ermi (2013) 216 Cal.App.4th 277, October 2013 LELR at p. 3. A probation search includes all areas and items over which the probationer has joint or exclusive access or control. OK to search female’s purse since it was accessible to the male probationer.

United States v. McClendon (9th Cir. 2013) 713 F.3d 1211, September 2013 LELR at p. 2. A suspect is not “seized” – either by arrest or detention – until he is physically restrained or submits to authority. Evidence dropped prior to the seizure of a suspect is lawfully seized. Whether officers had sufficient grounds to detain or arrest suspect prior to his dropping evidence is irrelevant.

United States v. King (9th Cir. 2013) 711 F.3d 986, September 2013 LELR at p. 7. No suspicion whatsoever is necessary to conduct a search pursuant to a probation consent search condition.. “A suspicionless search, conducted pursuant to a suspicionless-search condition of a probationer’s agreement, does not violate the Fourth Amendment.” 711 F.3d at p. 991. Law is the same as to parole search condition searches.

United States v. Wahchumwah (9th Cir. 2013) 710 F.3d 862, June 2013 LELR at p. 5. It is OK for an undercover officer to use a concealed audio-visual recording device while within a suspect’s home in an undercover capacity.

Florida v. Jardines (2013) 185 L Ed 2d 496, May 2013 LELR at p. 7. Officer cannot take a drug sniffing dog to the front door of a residence without a search warrant.

People v. Nishi (2012) 207 Cal.App.4th 954, February 2013 LELR at p. 2. OK for officers to conduct a warrantless search of an illegal campsite on public land. Warrantless search of an illegal structure on a public sidewalk is lawful. Several related cases are discussed.

United States v. Decoud (9th Cir. 2006) 456 F.3d 996, February 2013 LELR Bonus at p. 23. Disclaimer of ownership negates standing to object to a search. “Although a briefcase is property in which one may have a Fourth Amendment interest, Decoud failsto appreciate that he gave up any expectation of privacy in the briefcase by unequivocally disclaiming ownership. . . . As a result, we reject his protestations against the search of the briefcase.” 456 Fed.3d. at pp. 1007- 1008.

People v. Fernandez (2012) 208 Cal.App.4th 100, January 2013 LELR at p. 7. Co-tenant’s consent search is valid unless another co-tenant is physically present and objects.

Georgia v. Randolph (2006) 164 L Ed 2d 208, January 2013 LELR at p. 19. Consent search cannot be conducted if a co-tenant is present and objects. But there are exceptions.

SEARCH WARRANTS

United States v. Needham (9th Cir. 2013) 718 F.3d 1190, October 2013 LELR at p. 6. Affiant must state a factual basis for her opinion that child molesters commonly possess child pornography.

Bailey v. United States (2013) 185 L Ed 2d 19, April 2013 LELR at p. 17. OK to detain persons in the immediate vicinity of premises where a search warrant is being served – but not persons away from the immediate vicinity.

STATUTE OF LIMITATIONS

People v. Robinson (2010) 47 Cal.4th 1104, June 2013 LELR at p. 18. Filing charges against an unknown defendant solely by his or her DNA profile stops the running of the statute of limitations.

THEFT

People v. Bell (2011) 197 Cal.App.4th 822, January 2013 LELR at p. 16. Apartment rental under a false name and non-payment of rent is identity theft and grand theft.

TRAFFIC

People v. Harris (2012) 208 Cal.App.4th Supp. 1, April 2013 LELR at p. 7. HOV lane is a lane within the meaning of the Vehicle Code.

People v. Aznavoleh (2012) 210 Cal.App.4th 1181, April 2013 LELR at p. 9. A street racer who crashes and causes injury has committed assault with a deadly weapon. “The primary issue in this case is whether a driver who deliberately races through a red light at a busy intersection and collides with another vehicle, causing injury to another, can be convicted of assault with a deadly weapon. The answer is yes.” 210 Cal..App.4th at p. 1183.

VANDALISM

People v. Carrasco (2012) 209 Cal.App.4th 715, February 2013 LELR at p. 7. OK to aggregate all acts committed pursuant to a single general impulse or plan to determine value of damages. $400 or more is felony vandalism.

VEHICLE STOPS AND SEARCHES

United States v. Scott (9th Cir. 2012) 705 F.3d 410, October 2013 LELR at p. 2. An immediate or delayed warrantless search on probable cause to believe evidence is in a vehicle is lawful.

United States v. Turvin (9th Cir. 2008) 517 F.3d 1097, June 2013 LELR at p. 19. At a traffic stop, it is OK for officers to ask questions unrelated to the traffic stop. “Mere police questioning does not constitute a seizure and thus no reasonable suspicion is required to justify questioning that does not prolong an initially lawful stop.” 517 F.3d at pg. 1100. “Questioning that does not appreciably extend the duration of a traffic stop is reasonable . . .” “Officers are not required to move at top speed when executing a lawful traffic stop.” 517 F.3d at p. 1102.

People v. Little (2012) 206 Cal.App.4th 1364, January 2013 LELR at p. 1. OK for officers to stop and search a car where the car and its occupants match the description given by a recent burglary victim.

People v. Schmitz (2012) 55 Cal.4th 909, January 2013 LELR at p. 11. Police may search passenger compartment of a vehicle is a passenger is a parolee or a probationer with a search condition.

VENUE

People v. Chavarria (2013) 213 Cal.App.4th 1364, October 2013 LELR at p.11. Multicounty crime can be prosecuted in any county in which the crime or an act preparatory to the crime took place, including a telephone call to set up a drug buy. Can file charges in the county from which the call was made, in county where the call was answered or in the county where the actual drug sale took place.

VEHICLE STOPS AND SEARCHES

People v. Corrales (2013) 213 Cal.App.4th 696, June 2013 LELR at p. 2. OK to traffic stop a car based upon a reasonable suspicion that the driver is texting.

Florida v. Harris (2013) 185 L Ed 2d 61, March 2013 LELR at p. 16. Drug alert by a trained dog on a lawfully stopped vehicle justifies an immediate search of the vehicle.

WEAPONS

People v. Nguyen (2013) 212 Cal.App.4th 1311, July 2013 LELR at p. 12. Possession of parts necessary to make an AK-47 is attempted assembly and attempted possession of an assault weapon – now PC 30600 and PC 30605.

 


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