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CONTENTS - PAST ISSUES


(2012, 2011, 2010, 2009, 2008 & 2007 only)

INDEX TO VOLUME 36 (2012) OF
THE LAW ENFORCEMENT
LEGAL REPORTER (LELR)

276 Cases Every Police Officer, Prosecutor and Judge Should Know. February 2012 LELR (entire issue).

ARREST

United States v. Pope (9th Cir. 2012) 686 F.3d 1078, October 2012 LELR at p. 1. Search incident to arrest. OK to search on probable cause to arrest. Need not say, "You are under arrest" prior to conducting the search.

Florence v. Board of Chosen Freeholders of the County of Burlington (2012) 182 L Ed 2d 566, May 2012 LELR at p. 15. California visual strip search laws for arrestees being booked into a custodial facility remain in effect. Visual strip search remains lawful. Visual strip search procedure set forth.

ASSAULT WITH A FIREARM

People v. Monzo (2012) 53 Cal.4th 880, June 2012 LELR at p. 14. Penal Code section 246 shooting at an inhabited vehicle is committed when the shooter is outside the vehicle even if the gun is inside the vehicle when it is fired.

BURGLARY

People v. Yarbrough (2012) 54 Cal.4th 889, September 2012 LELR at p. 14. Residence balcony with a metal railing is an inhabited dwelling for the purposes of the burglary stature. Entry onto the balcony to steal is a residential, i.e., first degree, burglary.

People v. Chavez (2012) 205 Cal.App.4th 1274, September 2012 LELR at p. 17. A fenced yard is not a building for the purposes of the burglary statute. Entering into a fenced yard is not a burglary.

Magness v. Superior Court (2012) 54 Cal.4th 270, August 2012 LELR at p. 15. Burglary requires an entry, however slight. So a crook who opened a garage door by using a stolen remote control - but never actually entered the garage - did not commit burglary.

People v. Tuggle (2012) 203 Cal.App.4th 1071, June 2012 LELR at p. 7. A single fingerprint can prove the defendant was at the crime scene, in this case a burglary.

CONSENSUAL ENCOUNTERS

Florida v. Bostick (1991) 501 U.S. 419, March 2012 LELR Bonus at p. 1. Police may approach persons in public places and ask potentially incriminating questions and for a consent search.

We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. 501 U.S. at p. 431.

CRIMES AGAINST PEACE OFFICER

People v. Iboa (2012) 207 Cal.App.4th 111, December 2012 LELR at p. 15. Penal Code 69 violation shown by threatening language and threatening physical behavior by defendant.

People v. Rodriguez (2012) 207 Cal.App.4th 1540, December 2012 LELR at p. 10. Officer may pursue a fleeing man. Tossing an item gives reasonable suspicion to detain a fleeing man. Resisting an officer is a violation of Penal Code section 69.

CROSS EXAMINATION

"Courtroom Survival - The Officers Guide to Better Testimony." October 2012 LELR at Bonus, pg. 1. Surviving cross-examination and living with your report.

DETENTION/PAT DOWN

California v. Hodari D. (1991) 499 U.S. 621, December 2012 LELR at p. 3. Officer may pursue a fleeing man. Fleeing man has not been detained or arrested unless he is physically restrained by and under the control of an officer or submits to the authority of an officer.

People v. Rodriguez (2012) 207 Cal.App.4th 1540, December 2012 LELR at p. 10. Officer may pursue a fleeing man. Tossing an item gives reasonable suspicion to detain a fleeing man. Resisting an officer is a violation of Penal Code section 69.

People v. Dolly (2007) 40 Cal.4th 458, November 2012 LELR Bonus. An anonymous phone tip of firearm use justifies the detention, patdown, and search of a described suspect and his car.

Terry v. Ohio (1968) 392 U.S. 1, May 2012 LELR at p. 1. Officer may stop and frisk a suspect based upon reasonable suspicion that the suspect is involved in criminal activity. This can include a "pat down" for weapons. Probable cause to arrest is not necessary, only reasonable suspicion.


[A] police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. 392 U.S. at p. 22.

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger. 392 U.S. at p. 27.

FINGERPRINTS

People v. Tuggle (2012) 203 Cal.App.4th 1071, June 2012 LELR at p. 7. A single fingerprint can prove the defendant was at the crime scene, in this case a burglary.

KIDNAPPING

People v. Leavel (2012) 203 Cal.App.4th 823, October 2012 LELR at p. 15. Forced movement of an occupant within the rooms of his or her own home can be kidnapping.

LYNCHING

In re Maria D. (2011) 199 Cal.App.4th 109, April 2012 LELR at p. 16. Trying to aid and arrestee's escape is attempted lynching even if the escape is unsuccessful.

MIRANDA/CONFESSIONS

Listing of 46 Miranda cases with brief summary of each. July 2012 LELR at p. 29 through p. 34.

People v. Sauceda-Contreras (2012) 55 Cal.4th 203, October 2012 LELR at p. 10. Officer may ask suspect clarifying questions as to whether the suspect is invoking his right to counsel.

People v. Thomas (2012) 54 Cal.4th 908, September 2012 LELR at p. 1. Officer may interview defendant who invoked his right to counsel but then initiates conversation with the officer.

New York v. Quarles (1984) 467 U.S. 656, August 2012 LELR at p. 1. Establishes "public safety exception" to Miranda. "While life hangs in the balance, there is no room to require admonitions concerning the right to counsel and to remain silent." People v. Davis (2009) 46 Cal.4th 539, 591. See also Allen v. Roe, below.

Allen v. Roe (2002) 305 F.3d 1046, August 2012 LELR at Bonus pg. 1. "Where's the gun" public safety exception applies to Miranda.


[U]nder the public safety exception, Miranda warnings need not be given when "police officers ask questions reasonably prompted by a concern for the public safety." In order for the public safety exception to apply, there must have been "an objectively reasonable need to protect the police or the public from immediate danger." That is, the police must reasonably believe that there is a serious likelihood of harm to the public or fellow officers. 305 F.3d at p. 1050.

People v. Mosley (1999) 73 Cal.App.4th 1081, July 2012 LELR at p. 1. "Custody" for Miranda purposes is evaluated by a reasonable man standard and the degree of confinement at the time of questioning. Would a "reasonable man" in the suspect's position consider himself under arrest. Public safety and rescue doctrine exceptions explained.

United States v. Redlightning (9th Cir. 2010) 624 F.3d 1090, July 2012 at p. 8. Voluntary jailhouse interviews are not custodial.


"A person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave." 624 F.3d at p. 1102.

"The ultimate inquiry underlying the question of custody is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." 624 F.3d at p. 1102.

"The reasonable person test is an objective test, applied from the viewpoint of an innocent person." 624 F.3d at p. 1103.

People v. Huggins (2006) 38 Cal.4th 175, July 2012 LELR at p. 9. "Interrogation" is express questioning or words or actions reasonably likely to elicit an incriminating response. Informing the defendant of the charges against him is not interrogation.

Berghuis v. Thomkins (2010) 176 L Ed 2d 1098, July 2012 LELR at p. 12.
1. An express waiver is not necessary prior to interrogation.
2. A waiver will be implied by the suspect answering questions after being informed of his rights and indicating he understands them. .
3. Invocation of rights must by unequivocal.
A suggested Miranda admonishment and implied waiver are included in this summary.

Maryland v. Shatzer (2010) 175 L Ed 2d 1045, July 2012 LELR at p. 17. Invocation of right to counsel is not eternal. Prisoners can be interrogated even though they invoked their right to counsel sometime in the past.

Howes v. Fields (2012) 182 L Ed 2d 17, July 2012 LELR at p. 21. Jail and prison inmates are not in custody for Miranda purposes unless their degree of confinement is increased prior to interrogation.

Montejo v. Louisana (2009) 173 L Ed 2d 955, July 2012 LELR at p. 25. OK for officers to seek to interview a defendant who has been arraigned and has an attorney.

People v. Bowman (2011) 202 Cal.App.4th 353, June 2012 LELR at p. 4. Adoptive admissions by not answering questions after a Miranda waiver are admissible in court. Q: "Did you shoot Joe?" A: (no response). Failure to answer is considered an adoptive admission to the shooting.


If a person is accused to having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, . . . and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt. 202 Cal.App.4th at p. 365.

Bobby v. Dixon (2011) 181 L Ed 2d 328, May 2012 LELR at p. 7. If suspect is not in custody, no Miranda admonishment is necessary. Also, it is OK for officers to suggest to a suspect that he confess before his accomplice does so.

People v. Nelson (2012) 53 Cal.4th 367, May 2012 LELR at p. 10. Invocation of Miranda rights must be unequivocal. A suspect's request to speak to his mother is not an invocation of the right to remain silent or the right to counsel.

Sessoms v. Runnels (9th Cir. 2011) 650 F.3d 1276, April 2012 LELR at p. 1. Invocation of Miranda rights must be unequivocal. Officers need not ask questions to clarify equivocal statements regarding an attorney. In this case, the suspect told officers that his father told him to ask the police for an attorney. A 9th Circuit three judge panel, in a 2-1 opinion, said this was not an unequivocal invocation of right to counsel But this case was reheard by a full panel of the 9th Circuit and it ruled, 6 to 5, that the suspect's statement that his father told him to ask the police for a lawyer was an invocation of his right to counsel. The new case citation, which renders the prior opinion null and void, is Sessoms v. Runnels (9th Cir. 2012) 691 F. 3d 1054.

People v. Pearson (2012) 53 Cal.4th 306, April 2012 LELR at p. 6. Miranda readvisement is not necessary prior to a reasonably contemporaneous reinterview. "Readvisement is unnecessary where the subsequent interrogation is reasonably contemporaneous with the prior knowing and intelligent waiver." 53 Cal.4th at p. 316. In this case, reinterview took place 27 hours after the initial advisement, waiver and interview. A second interview without a Miranda readvisement should be:
1. By the same officer.
2. In the same location.
3. Following the question, "do you remember your rights I told you before?"
4. And try to have some contact with the suspect during the interval between the first and second interview, even if about only trivial matters.

People v. Enraca (2012) 53 Cal.4th 735, March 2012 LELR at p. 9. Volunteered statements to a booking officer are admissible despite an earlier invocation of the right to counsel.

Howes v. Fields (2012) 182 L Ed 2d 17, March 2012 LELR at p. 13. OK to interview a prison inmate without a Miranda advisement and waiver so long as the inmate's degree of confinement is not increased.

MURDER

People v. Gonzalez (2012) 54 Cal.4th 643, September 2012 at p. 8. Accomplice A can be convicted of the murder of Accomplice B when the intended victim fights back and kills Accomplice B.

People v. Pham (2011) 192 Cal.App.4th 552, June LELR at p. 11. The crime of attempted murder has been committed when defendant fires into a crowd even though his intended victims were not in the crowd at the time.

People v. Cravens (2012) 53 Cal.4th 500, May 2012 LELR at p. 1. A single "sucker punch" resulting in the victim's death can be charged as murder. In this case, the victim - who was intoxicated and unable to resist - was sucker punched by the defendant, fell, hit his head, and died.

People v. Canizalez (2011) 197 Cal.App.4th 832, January 2012 LELR at p. 15. Fatal crash. All participants in a street race can be convicted of second degree murder even if only one racer's car hit the victim's car.

POLLING PLACE CRIMES

Elections Code sections 18000 to 18578. The Elections Code sets forth many offenses that might be committed on election day at a polling place. November 2012 LELR at p. 1.

SCHOOL SECURITY OFFICERS

In re M.M. (2012) 54 Cal.4th 530, August 2012 LELR at p. 23. A school security officer is a public officer per PC 148(a)(1). Resisting a school security officer can be charged as a violation of PC 148(a)(1).

SEARCH AND SEIZURE

People v. Lazlo (2012) 206 Cal.App.4th 1063, November 2012 LELR at p 6. Proposition 8 precludes the suppression of unlawfully seized evidence at parole and probation violation hearings.

United States v. Pope (9th Cir. 2012) 686 F.3d 1078, October 2012 LELR at p. 1. Search incident to arrest. OK to search on probable cause to arrest. Need not first say, "You are under arrest."

Patel v. City of Los Angeles (9th Cir. 2012) 686 F.3d 1089, October 2012 LELR at p. 8. Hotel/motel must maintain a guest register and must allow officers to examine it on request.

People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, August 2012 LELR at p. 5. Crime scene "protective sweep search" is lawful.

People v. Torres (2012) 205 Cal.App.4th 989, August 2012 LELR at p. 19. No exigent circumstances entry into a residence based solely upon the odor of burning marijuana at the front door.

United States v. Bolivar (9th Cir. 2012) 670 F.3d 1091, June 2012 LELR at p. 1. Probation consent search. OK to search a backpack on reasonable suspicion that probationer with a search condition has access to it. This case involved the search of a backpack found in the residence of a probationer who had a roommate. Court found reasonable suspicion to believe probationer had access to the backpack.

People v. Smith (2002) 95 Cal.App.4th 912, June 2012 LELR Bonus at p. 19. Probation consent search of items under the joint control of a probationer (with a search condition) and another person is valid.

People v. Pleasant (2004) 123 Cal.App.4th 194, June 2012 LELR at p. 22. Probation consent search includes areas of joint access of probationer and another. In this case, the defendant's mother, who had a probation search condition herself, had access into defendant's (her son's) bedroom where a gun was found under the bed.

United States v. Russell (9th Cir. 2012) 664 F.3d 1279, April 2012 LELR. A consent search of a person includes a pat down of the groin area. When a pat down is being done pursuant to the suspect's consent a male officer should pat down males and a female officer should pat down females. However, if a pat down is being conducted based upon a reasonable suspicion that the suspect is carrying a weapon, then a pat down by an officer of the opposite gender would be permissible. Still, it is always preferable to have pat downs conducted by an officer of the same gender as the suspect.

Ryburn v. Huff (2012) 181 L Ed 2d 966, March 2012 LELR at p. 1. An exigent circumstances entry was valid based upon a reasonable belief that a woman was about to arm herself with a gun. Officers had been talking to her on the porch of her home about her son threatening to shoot up a school. When they asked her if she had any guns in her home she suddenly turned and entered her home. Officers were fearful she was about to arm herself with a gun. The U.S. Supreme Court, in a unanimous opinion, approved the exigent circumstances entry into the home under these facts. The fact that she had a right to enter her own home did not negate the officers' reasonable fear that she was about to arm herself. "There are many circumstances in which lawful conduct may portend imminent violence." 181 L Ed 2d at p. 972.

People v. Bolter (2011) 199 Cal.App.4th 761, March 2012 LELR at p. 5. Warrantless search of jail visitor's locker is valid. "Defendant did not have a reasonable expectation of privacy with respect to possessions he placed in a locker on the jail property. . . . [Visitors] who store goods in lockers on jail property should have no expectation of privacy with respect to those lockers." 199 Cal.App.4th at p. 770.

United States v. Stanley (9th Cir. 2011) 653 F.3d 946, January 2012 LELR at p. 8. Co-owner in possession of a computer can give police consent to access the contents of the computer.

People v. Downey (2011) 198 Cal.App.4th 652, January 2012 LELR at p. 11. Probation consent search. Officers need reasonable grounds to believe a probationer lives at a residence in order to enter it to conduct a probation consent search.

People v. Valencia (2012) 201 Cal.App.4th 922, October 2012 LELR at p. 5 . Consent to search given to first officer applies to second officer as well.

SEARCH WARRANTS

People v. Rangel (2012) 206 Cal.App.4th 1310, November 2012 LELR at p. 3. OK for officers to seize and access a cell phone during the service of a search warrant.

Crime Scene Search Warrant - Statement of Probable Cause. Blank form. August 2012 LELR at p. 10-11.

SENTENCING

People v. Stanley (2012) 54 Cal.4th 734, November 2012 LELR at p. 10. Sentencing/Restitution. OK for a sentencing judge to order restitution in the amount needed to repair damaged property even if in excess of the pre-damage value.

People v. Solis (2012) 206 Cal.App.4th 1210, November 2012 LELR at p. 13. OK for a judge to order consecutive sentences for multiple rapes of the same victim in a single incident.

People v. Correa (2012) 54 Cal.4th 331, September 2012 LELR at p. 12. Multiple convictions for the same crime can be punished separately and consecutively.

SEX CRIMES

People v. Solis (2012) 206 Cal.App.4th 1210, November 2012 LELR at p. 13. OK for a judge to impose consecutive sentences for multiple rapes of the same victim in a single incident.

People v. Cornett (2012) 53 Cal.4th 1261, June 2012 LELR at p. 17. Sex crimes against children "10 years of age or younger" means under 11 years of age. "The ordinary meaning of the phrase "10 years of age" is a child who has reached his or her 10th birthday but who has not yet reached his or her 11th birthday." 53 Cal.4th at pp. 1265-1266.

TRAFFIC OFFENSES

People v. Nelson (2012) 200 Cal.App.4th 1083, May 2012 LELR at p. 5. Using a cell phone while stopped at a red light is a Vehicle Code section 23123 violation.

People v. Vela (2012) 205 Cal.App.4th 942, September 2012 LELR at p. 5. Driver walking away from a crash scene is hit and run.

People v. Canizalez (2011) 197 Cal.App.4th 832, January 2012 LELR at p. 15. Fatal crash. All participants in a street race can be convicted of second degree murder even if only one racer's car hit the victim's car.

VEHICLE STOPS AND SEARCHES

People v. Valencia (2012) 201 Cal.App.4th 922, October 2012 LELR at p. 5 . Consent to search given to first officer applies to second officer as well.

People v. Vibanco (2007) 151 Cal.App.4th 1, September 2012 Bonus at pg. 1. OK to order driver and passengers out of a traffic stopped car, or to stay in it, or to sit on the curb. Officers can control the driver and passengers at a car stop.

People v. Durant (2012) 205 Cal.App.4th 57, August 2012 LELR at p. 12. Probation search condition, if known to officer, "cures" a bad car stop.

People v. Letner and Tobin (2010) 50 Cal.4th 99, April 2012 LELR at Bonus p. 1. OK for police to stop a car based upon a reasonable suspicion of criminal activity even though there might be an innocent explanation for the suspicious circumstances observed. This summary contains an extended discussion of the caselaw regarding vehicle stops based upon suspicious circumstances.

United States v. Jones (2012) 181 L Ed 2d 911, March 2012 at p. 17. The warrantless installation and monitoring of a tracking device on a car is an unreasonable search. Summary includes the procedure for obtaining a search warrant to install a tracking device upon a vehicle.

People v. Stillwell (2011) 197 Cal.App.4th 996, January 2012 LELR at p. 1. Traffic stop, dog sniff and alert, search OK.

People v. Bennett (2012) 197 Cal.App.4th 907, January 2012 LELR at p. 5. OK to stop a car driving away from the scene of a parking violation to issue a cite for the violation.

United States v. Williams (9th Cir. 2005) 419 F.3d 1029, January 2012 LELR Bonus at p. 1. Vehicle stop. Officer can order existing occupant back into the vehicle.

WEAPONS

Firearms - Open Carry. Penal Code section 26400. November 2012 LELR at p. 16 and December 2012 LELR at p. 17. Effective January 1, 2013, the open carry ban applies to long guns as well as handguns.

People v. Clark (1996) 45 Cal.App.4th 1147, April 2012 LELR at p. 9. A firearm is loaded when there is a cartridge within the firearm requiring no more than operating the bolt or pulling back a slide to place the cartridge in firing position. A firearm is not loaded when cartridges are stored in the buttstock or in a magazine strapped to the outside of the firearm. The definition of "loaded" can vary depending upon where the firearm is carried - such as in a state office building versus on a public street.

(End of 2012 Table of Contents)

INDEX TO VOLUME 35 (2011)
THE LAW ENFORCEMENT
LEGAL REPORTER (LELR)

ARREST

Garcia v. County of Merced (9th Cir. 2011) 639 F.3d 1206, August 2011 LELR at p. 15. "Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been committed or is being committed by the person being arrested. For information to amount to probable cause, it does not have to be conclusive of guilt, and it does not have to exclude the possibility of innocence. . . [P]olice are not required to believe to an absolute certainty, or by clear and convincing evidence, or even by a preponderance of the available evidence that a suspect has committed a crime. All that is required is a fair probability, given the totality of the evidence, that such is the case." 639 F.3d at p. 1209. A jailhouse informant can provide probable cause for an arrest.

ARSON

In re V.V. (2011) 51 Cal.4th 1020, July 2011 LELR at p. 12. Tossing a firecracker onto dry brush is arson. "Malice will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right. . . . An intentional act creating an obvious fire hazard done without justification would certainly be malicious." 51 Cal.4th at p. 1028.

People v. Glazier (2010) 186 Cal.App.4th 1151, January 2011 LELR at p. 16. Defendant committed arson by inserting pole containing flammable liquid into the crawl space under a home and then reinserting the pole with an open flame. This was also a first degree burglary - an entry into an inhabited dwelling to commit a felony.

BURGLARY

People v. Jackson (2010) 190 Cal.App.4th 918, May 2011 LELR at p. 9. Outside ground floor balcony adjacent to the living room of an apartment unit is an "inhabited dwelling house."

People v. Aguilar (2010) 181 Cal.4th 966, January 2011 LELR at p. 19. A damaged residence is still an "inhabited dwelling house" for first degree burglary purposes. Note also "disaster provision" language in PC 459 which says the same.

People v. Glazier (2010) 186 Cal.App.4th 1151, January 2011 LELR at p. 16. A burglary can be committed by an instrument. In this case, entry was made by shoving a long pole into the crawl space under a home to start a fire.

People v. Russell (2011) 187 Cal.App.4th 981, March 2011 LELR at p. 18. Killing that occurs in flight from burglary is first degree felony murder. In this case, the burglar was fleeing in a car four miles from the scene of the burglary when he crashed into another car killing its driver. Defendant had not yet "reached a place of temporary safety."

In re James B. (2003) 109 Cal.App.4th 862, March 2011 LELR at Bonus pg. 1. Auto burglary. Car is "locked" if doors are locked even though a window is down several inches. So in "sting" situations, the bait car can have a window down several inches so long as the doors are locked.

CHILD - CRIMES AGAINST

People v. Phillips (2010) 188 Cal.App.4th 1383, April 2011 LELR at p. 19. Indecent exposure and annoying a child can be charged without naming a specific victim. In this case, defendant was openly masturbating outside a school with many children present.

People v. Soto (2011) 51 Cal.4th 229, December 2011 LELR at p. . Consent is not a defense to a charge of committing a lewd act upon a child.

CRIME CHARGING

People v. Twiggs (1963) 223 Cal.App.2d 455, February 2011 LELR at Bonus pg. 1. Unknown victim(s) can be listed in charging documents as John/Jane Doe(s). If other witnesses can establish the crime, victim need not be in court and his or her name need not be known.

CRIMINAL THREATS - PENAL CODE SECTION 422

People v. Wilson (2010) 186 Cal.App.4th 789, January 2011 LELR at p. 6. Peace officer can be the victim of criminal threats. In this case the victim was a correctional officer in a state prison who was threatened by an inmate.

CRIMES AGAINST PEACE OFFICERS

People v. Martinez (1970) 3 Cal.App.3d 886, April 2011 LELR at Bonus, pg. 1. Barefoot kick on boot of motorcycle officer is battery on a peace officer. "We are not prepared to say that a barefooted kick is unoffensive. Given the appropriate circumstances and the appropriate barefoot, it may be more than ordinarily offensive." 3 Cal.App.3d at p. 889.

DEADLY FORCE BY A PEACE OFFICER

A.D. v. Markgraf (9th Cir. 2011) 636 F.3d 555, October 2011 LELR at p. 10. OK to shoot a motorist who is repeatedly smashing into a police car in an attempt to continue flight from officers.

DETENTION

People v. Fields (1984) 159 Cal.App.3d 555, November 2011 LELR at Bonus at p. 1. Race may be considered a factor in detaining a person matching the race of a described suspect.

United States v. Smith (9th Cir. 2011) 633 F.3d 889, June 2011 LELR at p. 7. Unprovoked flight from an officer in a high crime area justifies detention and pat down. "A person's headlong, unprovoked flight upon seeing a police officer, when it occurs in a high-crime neighborhood, is sufficient to establish reasonable suspicion that the person is involved in criminal activity." 633 F.3d at p. 893. Note: if during the suspect's flight he commits a Vehicle Code violation by running through traffic, he can be arrested for that offense and searched incident to that arrest.

DRIVING UNDER THE INFLUENCE

White v. Department of Motor Vehicles (2011) 196 Cal.App.4th 794, October 2011 LELR at pg. 2. Arrestee must take a breath test if technician cannot draw a blood sample. Suggested language advising of the obligation to take a breath test is set forth in this summary.

People v. Thompson (2006) 38 Cal.4th 811, June 2011 LELR at Bonus pg. 1. OK to enter and arrest a DUI suspect in his home. Exigent circumstances to prevent dissipation or corruption of blood alcohol level justifies the warrantless entry.

EVADING

People v. Varela (2011) 193 Cal.App.4th 1216, August 2011 LELR at p. 13. Flight on a "pocket bike" from pursuing officers is evading in violation of Vehicle Code section 2800.1 et sec.

HEARSAY

Michigan v. Bryant (2011) 179 L Ed 2d 93, April 2011 LELR at p. 14. "Non-testimonial" out of court statements are admissible at trial. These are statements taken to deal with the ongoing emergency. First ask, "what's happening?" Not, "what happened?" Later you can take a full and detailed report.

People v. Johnson (2010) 189 Cal.App.4th 1216, May 2011 LELR at p. 16. 'Non-testimonial" out of court statements admissible at trial. Victim was describing what just happened to her and was still under the stress of the crime. The primary purpose of police questioning was to deal with the ongoing emergency and not to gather evidence for trial.

KIDNAPPING

People v. Arias (2011) 193 Cal.App.4th 1428, November 2011 LELR at p. 15. Movement of victim 15 feet from public hallway into an apartment is simple kidnapping.

People v. Vines (2011) 51 Cal.4th 830, September 2011 LELR at p. 7. Movement of store employees from front of store into back room freezer in order to steal items is kidnapping for robbery. Life sentence.

MIRANDA/CONFESSONS

Kemp v. Ryan (9th Cir. 2011) 638 F.2d 1245, November 2011 LELR at p. 9. Casual conversation unrelated to a charged crime is not interrogation. If suspect makes incriminating statements, they are admissible at trial. Prior Miranda admonishment is not necessary.

People v. Racklin (2011) 195 Cal.App.4th 872, November 2011 LELR at p. 12. UnMirandized statements are admissible in probation and parole violation hearings.

United States v. Redlightning (9th Cir. 2010) 624 F.3d 1090, March 2011 LELR at p. 6. A suspect who agrees to come to the police station to be interviewed is not in custody and need not be given a Miranda admonishment. "The agents used no tools of coercion to force Redlightning to go with them; they asked him if he would come in to talk because they were investigating cases, and he agreed to do so. A request by law enforcement and responsive cooperation by an individual are routine and, alone, do not amount to an arrest." 624 F.3d at p. 1101.

"A person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave." 624 F.3d at p. 1102.

"The ultimate inquiry underlying the question of custody is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." 624 F.3d at p. 1102.

"The reasonable person test is an objective test, applied from the viewpoint of an innocent person." 624 F.3d at p. 1103.

"The absence of explicitly informing the person that he or she is free to leave is not a dispositive factor." 624 F.3d at p. 1103.

People v. Moore (2011) 51 Cal.4th 386, March 2011 LELR at p. 10. No arrest, no custody, no Miranda.

People v. Thomas (2011) 51 Cal.4th 449, March 2011 LELR at p. 15. Degree of confinement at time of interrogation determines if suspect is in custody for Miranda purposes. "Police officers may sufficiently attenuate an initial display for force, used to effect an investigative stop, so that no Miranda warnings are required when questions are asked." 51 Cal.4th at p. 478.

J.D.B. v. North Carolina (2011) 180 L Ed 2d 310, July 2011 LELR at p. 8. Juvenile suspect "custody" is determined by a "reasonable child" test. Age of juvenile is to be considered in determining if juvenile would have considered himself to be under arrest as a "reasonable child."

People v. Bacon (2010) 50 Cal.4th 1082, February 2011 LELR at p. 11. Invocation of Miranda rights must be unequivocal. "Maybe I should talk to an attorney," or a similarly equivocal statement is not an invocation of the right to counsel. Same applies to invocation of right to silence.

People v. Camino (2010) 188 Cal.App.4th 1359, July 2011 LELR at p. 1. First interview without Miranda; second interview with Miranda; second interview is admissible in court.

People v. Gomez (2011) 192 Cal.App.4th 609, July 2011 LELR at p. 5. Jail booking questions regarding gang affiliation for jail administration purposes do not require a Miranda admonishment. Answers admissible at trial.

Montejo v. Louisana (2009) 173 L Ed 2d 955, August 2011 LELR at Bonus, pg. 1. OK to seek to interview a defendant about a crime even though he has been charged with that crime in court and has an attorney on that crime. But officer must get a Miranda waiver prior to the interview even if the defendant is not in custody. Prior law prohibited such interviews of charged and represented defendants.

MURDER

People v. Anderson (2011) 51 Cal.4th 989, September 2011 LELR at pg. 4. Theft can become robbery can become murder. When thief fights with property owner, theft becomes robbery. If someone is killed, the killing can be charged as felony murder.

People v. Nelson (2011) 51 Cal.4th 198, April 2011 LELR at p. 11. Pointing a gun can be attempted murder. "Defendant clearly formed an intent to kill and took several steps to achieve that end. He took a firearm, climbed out of a moving car, sat on the window frame, reached across the roof, braced himself, and aimed at Doe. He had ample time to premeditate and deliberate." 51 Cal.4th at p. 213.

Ngo v. Giurbino (9th Cir. 2011) 651 F.3d 1112, October 2011 LELR at p. 18. Multiple shots at a car is attempted murder of each occupant within the car. "A reasonable jury could have inferred from the circumstantial evidence of visibility and the number of shots fired that Ngo had the required specific intent to kill all five passengers in the Tercel." 651 F.3d at p. 1115.

People v. Ayala (2010) 181 Cal.App.4th 1440, August 2001 LELR at p. 5. Murder is a reasonably foreseeable consequence of a gang fight. All involved gang members can be charged with murder.

People v. Russell (2011) 187 Cal.App.4th 981, March 2011 LELR at p. 18. Killing that occurs in flight from burglary is first degree felony murder. In this case, the burglar was fleeing in a car four miles from the scene of the burglary when he crashed into another car killing its driver. Defendant had not yet "reached a place of temporary safety."

People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, January 2011 LELR at p. 11. Driving a vehicle knowing it has bad brakes resulting in a fatal crash supports a vehicular murder charge (2nd degree murder). Malice is implied.

PANDERING

People v. Zambia (2011) 51 Cal.4th 965, July 2011 LELR at p. 16. OK to use an undercover officer posing as a prostitute to capture and prosecute a panderer. What is the difference between a pimp and a panderer? One who solicits or encourages another person to become a prostitute is a panderer in violation of PC 266i. One who actually lives off the earnings of a prostitute is a pimp in violation of PC 266h.

RAPE

People v. Ireland (2010) 188 Cal.App.4th 328, May 2011 LELR at p. 13. A prostitute can be a victim of rape. In this case, defendant agreed to pay for sex, drove to secluded location, pulled knife on the victim, had act of sexual intercourse with her, and then allowed victim to flee. Same method of operation used on four victims.

ROBBERY

People v. Weddles (2010) 184 Cal.App.4th 1342, June 2011 LELR at p. 11. Victim need only be in "constructive possession" of property taken by force or fear. Persons responsible for protecting and preserving property are generally considered to be in constructive possession of it.

People v. Bradford (2010) 187 Cal.App.4th 1345, February 2011 LELR at p. 6. Shoplifter who fights with mall security guards while trying to flee with stolen property can be charged with robbery of the security guards. Guards need not be employees of the specific store from which the items were shoplifted.

SCHOOL INTERVIEW

Camreta v. Greene (2011) 179 L Ed 2d 1118, July 2011 LELR at p. 19. OK to interview child crime victim while he or she is at school. Ninth Circuit case limiting such interviews was overruled by U.S. Supreme Court. Penal Code section 11174.3 permits such searches.

SCHOOL SEARCHES

New Jersey v. T.L.O. (1985) 496 U.S. 325, February 2011 LELR at p. 15. The exclusionary rule does not apply to searches conducted by school authorities in a school setting.

In re Sean A. (2010) 191 Cal.App.4th 182, May 2011 LELR at p. 3. OK for school authorities to search a student who, in violation of the school rules, left campus and then returned.

SEARCH AND SEIZURE
(see also School Searches, above)

Kentucky v. King (2011) 179 L Ed 2d 865, June 2011 LELR at p. 1. An exigent circumstances entry is valid unless the exigency was caused by a prior police Fourth Amendment violation. "Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed." 179 L Ed 2d at p. 876.

People v. Troyer (2011) 51 Cal.4th 599, April 2011 LELR at p. 5. OK to forcibly enter a locked interior room after entering a residence based upon exigent circumstances. This case summarizes many other cases approving exigent circumstances entries.

People v. Chung (2011) 195 Cal.App.4th 721, August 2011 LELR at p. 1. OK to make an exigent circumstances entry into premises based upon a reasonable belief an animal is in distress. "Exigent circumstances properly may be found when an officer reasonably believes immediate warrantless entry into a residence is required to aid a live animal in distress." 195 Cal.App.4th at p. 732.

People v. Gallego (2010) 190 Cal.App.4th 388, May 2011 LELR at p. 6. OK for officers in a public place to recover a suspect's discarded cigarette and submit it for DNA testing. The results are admissible in court.

Hamilton v. Brown (9th Cir. 2011) 630 F.3d 889, August 2011 LELR at p. 17. OK to forcibly take a DNA sample from a prison inmate.

In re D.C. (2010) 188 Cal.App.4th 978, March 2011 LELR at p. 1. Parents may consent to the search of their minor son's room in the family residence over the son's objection. : "We conclude his mother, as the parent of a minor child, had the authority to consent to a search of his bedroom and to override any objection he raised to the search of her apartment."

People v. Diaz (2011) 51 Cal.4th 84, February 2011 LELR at p. 2; and November 2011 LELR at p. 2. Incident to an arrest, police may access the contents of a cell phone taken from - or "immediately associated with" - an arrestee. No search warrant is necessary. Note: SB 914, which was intended to overrule the Diaz case, was vetoed. And the United States Supreme Court denied a petition for review of the Diaz case. So it remains good law in California.

United States v. Villasenor (9th Cir. 2010) 608 F.3d 467, January 2011 LELR at Bonus p. 1. A vehicle stop and search several miles past the border crossing station based on reasonable suspicion is valid as an "extended border search."

United States v. Franklin (9th Cir. 2009) 603 F.3d 652, January 2011 LELR at p. 2. Officers may search the motel room of a probationer who has a search and seizure condition.

People v. Rios (2011) 193 Cal.App.4th 584, October 2011 LELR at p. 14. OK to detain and pat down a person found inside a residence during a probation search of that residence.

People v. Matelski (2000) 82 Cal.App.4th 837, October 2011 LELR at Bonus, p. 1. Officers may lawfully detain and demand identification from persons leaving the home of a probationer who was prohibited from associating with convicted felons. "[T]here was a need to determine defendants' connection to the probationer because the probationer was prohibited by his general terms of probation from consorting with convicted felons." 82 Cal.App.4th at p. 850.

In re Jeremy G. (1998) 65 Cal.App.4th 553, May 2011 LELR at p. 1. A search conducted pursuant to a suspect's statement that he has a search condition is valid even if he was mistaken and did not have a search condition.

SEARCH WARRANTS

Muehler v. Mena (2005) 161 L Ed 2d 299, September 2011 LELR at Bonus pg. 1. OK to detain, handcuff, and questions persons within premises during the service of a search warrant.


SEX CRIMES

People v. Federico (2011) 191 Cal.App.4th 1418, June 2011 LELR at pg. 15. OK to pretend to be a 12-year-old girl on the Internet to catch child sex predators. This is not entrapment.

People v. Soto (2011) 51 Cal.4th 229, December 2011 LELR at p. . Consent is not a defense to a charge of committing a lewd act upon a child.

THEFT

People v. Sisuphan (2010) 181 Cal.App.4th 800 and People v. Casas (2010) 184 Cal.App.4th 1242, September 2011 LELR at p. 10. Intent to return is not a defense to theft. Intent to only temporarily deprive is not a defense to theft. This applies especially to embezzlement cases where employee will claim he only intended to use the stolen property temporarily and then return it. Applies to auto theft also.

People v. Twiggs (1963) 223 Cal.App.2d 455, February 2011 LELR at Bonus pg. 1. Unknown theft victim(s) - or victim(s) of any crime(s) - can be listed in charging documents as John/Jane Doe(s). In this case, a plain clothes detective watched the defendant pick pocket persons who were entering a bus. Convictions for Grand Theft Person were affirmed even though the victims - who went on their way on the bus - were never identified.

TRAFFIC

People v. Carmona (2011) 195 Cal.App.4th 1385, October 2011 LELR at p. 7. Officers cannot stop a vehicle for making an unsignaled turning movement - which includes a lane change - unless there is another vehicle nearby that may be affected by the movement. So just seeing another car make a turning movement or lane change without signaling is not sufficient to justify a traffic stop of the car.

In re F. H. (2011) 192 Cal.App.4th 1465, September 2011 LELR at p. 1. Driving under the influence. A passenger can also be a driver. A car can have two drivers. If the passenger grabs the steering wheel, he or she becomes a driver and can be charged with DUI and other traffic offenses.

People v. Overland (2011) 193 Cal.App.4th Supp 9, October 2011 LELR at p. 5. Not wearing shoulder belt is a violation of VC 27315 even if lap portion of belt is fastened. In this case, the driver had the shoulder belt portion of the safety belt combination tucked behind her back.

People v. Varela (2011) 193 Cal.App.4th 1216, August 2011 LELR at p. 13. Flight on a "pocket bike" from pursuing officers is evading in violation of Vehicle Code section 2800.1 et sec.

VEHICLE STOPS AND SEARCHES

People v. Nottoli (2011) 199 Cal.App.4th 531, December 2011 LELR at p. . Traffic stop, 11550 H&S arrest, search of car and search of cell phone in car are all valid.

People v. Reyes (2011) 196 Cal.App.4th 856, November 2011 LELR at p. 6. A car stop for a single out of state license plate is unlawful unless the officer knows that the other state issues two plates. All states issuing only a single plate are listed.

United States v. Ewing (9th Cir. 2011) 638 F.3d 1226, November 2011 LELR at p. 2. OK for officer to see, retrieve, and examine currency stuffed in window weatherstripping of a suspected drug dealer's car.

People v. Watkins (2009) 170 Cal.App.4th 1043, May 2011 LELR at Bonus, p. 1. Officers need only "reasonable suspicion" of traffic or equipment violation to make a traffic stop. This summary lists and briefly describes 36 additional cases approving of traffic stops based upon reasonable suspicion of traffic or equipment violations.

People v. Wells (2006) 38 Cal.4th 1070, July 2011 LELR at Bonus, pg. 1. OK to traffic stop a vehicle based solely upon an anonymous phone call describing erratic driving. "Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip." 38 Cal.4th at p. 1083.

In re Greenwood (2010) 189 Cal.App.4th 742, April 2011 LELR at. pg. 1. OK to stop a vehicle with a current temporary operating permit when the DMV says its registration is expired. This case discusses several variations on the presence or absence of license plates, temporary operating permits and DMV reports.

People v. Maikhio (2011) 51 Cal.4th 1074, September 2011 LELR at p. 16. Game wardens can stop vehicles leaving hunting and fishing areas and demand to see any fish and/or game taken. Game warden does not have to have reasonable suspicion of illegal activity in order to do so. "We conclude that when a game warden reasonably believes than an occupant of a vehicle has recently been fishing or hunting, the warden does not violate the Fourth Amendment by stopping the vehicle to demand the display of all fish or game that have been taken." 51 Cal.4th at p. 1098.

WEAPONS

Hiibel v. Sixth Judicial District (2004) 159 L Ed 2d 292, February 2011 LELR at p. 18. Open carry movement. OK to demand identification of persons carrying an unconcealed firearm even if it is unloaded. Note: Effective January 1, 2012, Penal Code section 26350 goes into effect. This section makes it a misdemeanor for a person to openly carry an unconcealed and unloaded handgun.

Open Carry - Penal Code section 26350 - December 2011 LELR at p. . This new Penal Code section becomes effective January 1, 2012 and prohibits the open carry of an unloaded handgun.

In re J.G. (2010) 188 Cal.App.4th 1501, August 2001 LELR at p. 9. OK to arrest and prosecute for the crime of "possession of a weapon with the intent to assault" in violation of Penal Code section 12024. No actual assault need have occurred.

People v. Law (2011) 195 Cal.App.4th 976, December 2011 LELR at p.6. Gun "real" can be shown by circumstantial evidence. Actual gun need not have been recovered.

(End of 2011 Table of Contents)

INDEX TO VOLUME 34 (2010)
THE LAW ENFORCEMENT
LEGAL REPORTER (LELR)

203 Cases Every Peace Officer, Prosecutor and Judge Should Know appears in the February 2010 LELR at p. 13.

ARREST

People v. Bloom (2010) 185 Cal.App.4th 1496, December 2010 LELR at p. 138. 911 operator can have patrol officers make a citizen's arrest of a harassing caller. The citizen need not be physically present when the citizen's arrest is made by officers.

Devenpeck v. Alford (2004) 160 L Ed 2d 537, July 2010 LELR at p. 82. An arrest is valid if there is probable cause to arrest the defendant for any offense even if the officer names the wrong offense or has the wrong offense in mind.

People v. Leal (2009) 178 Cal.App.4th 1051, March 2010 LELR. "Chimel" arms reach search limited. Can't do Chimel arms reach search after arrestee is moved.

BAIL

Source of Bail Motions - Penal Code section 1271.5. January 2010 LELR at p. 1. Defendant cannot post bail by putting up stolen money or use stolen money to secure a bail bond.

CONSENSUAL ENCOUNTERS

People v. Bostick (1991) 501 U.S. 419, April 2010 LELR. Police may approach persons in public places and ask questions and ask for a consent search.

CONTROLLED SUBSTANCES

People v. Low (2010) 49 Cal.4th 372, September 2010 LELR at p. 102. Arrestee with drugs in his sock was properly convicted of bringing drugs into a jail.
People v. Fierro (2010) 180 Cal.App.4th 1342, July 2010 LELR at p. 78. "I will kill you right now," is a criminal threat. Suspect also displayed a weapon. Victim said he was "scared shitless."

DEADLY FORCE BY OFFICERS

Wilkinson v. Torres (9th Cir. 2010) 610 F.3d 546, December 2010 LELR at p. 134. OK for officers to use deadly force to stop a dangerous fleeing driver who might run them over.

DETENTION

Terry v. Ohio (1968) 391 U.S. 1, May 2010 LELR at p. 1. Officer may detain a suspect based upon reasonable suspicion of his involvement in criminal activity. Officer may pat down a detained suspect on reasonable suspicion that the suspect is armed.

DRIVING UNDER THE INFLUENCE

Garcia v. DMV (2010) 185 Cal.App.4th 73, December 2010 LELR at p. 136. Failure of DUI arrestee to choose a blood alcohol test is a refusal. "One offer plus one rejection equals one refusal; and, one suspension."

EVADING

People v. Copass (2009) 180 Cal.App.4th 37, June 2010 LELR at p. 67. Red lights displayed on pursuing police car need not be continuously activated.

EXIGENT CIRCUMSTANCES ENTRY

United States v. Mancinas-Flores (9th Cir. 2009) 588 F.3d 677, March 2010 LELR at p. 25. OK for officers to make an exigent circumstances entry to rescue illegal aliens being held hostage by smugglers. Applies to other hostage situations as well.

Michigan v. Fisher (2009) 175 L Ed 2d 398, January 2010 LELR at p. 2. Immediate warrantless entry into residence to prevent an occupant from injuring himself or others is lawful even if it is not certain others are within the residence. This is the "emergency aid exception."

Mickey v. Ayers (9th Cir. 2010) 606 F.3d 1223, November 2010 LELR at p. 128. Casual conversation between officer and suspect is not interrogation. Officer may re-Mirandize and interview a suspect who originally invoked his Miranda rights but then seeks to talk to the officer.

Moran v. Burbine (1986) 475 U.S. 412, July 2010 at p. 81. Need not tell suspect of an attorney's phone call or that attorney does not want the suspect to talk to the police. But if a retained attorney shows up at the jail, he must be allowed to visit his incarcerated client.

Berghuis v. Thompkins (2010) 176 L Ed 2d 1098, July 2010 LELR at p. 74. 1. Waiver not necessary prior to interrogation. 2. Invocation of rights must be unequivocal. 3. Waiver will be implied by person answering questions. 4. OK for officers to mention God during interrogation.

People v. Mosley (1999) 73 Cal.App.4th 1081, June 2010 LELR at p. 62. "Custody" is evaluated using a "reasonable man" standard. Would a reasonable man consider himself under arrest?

People v. Martinez (2010) 47 Cal.4th 911, April 2010 LELR. Invocation of Miranda rights after initial waiver must be unequivocal.

Maryland v. Shatzer (2010) 175 L Ed 2d 1045, April 2010 LELR. Invocation of right to counsel is not eternal despite continuous incarceration. Prison inmates may be questioned despite earlier invocation of right to counsel. This is an exception to Edwards v. Arizona (1981) 451 U.S. 477 which generally prohibits interrogation once an in-custody suspect asks for an attorney.

People v. Lessie (2010) 47 Cal.4th 1152, March 2010 LELR. Juvenile asking for a parent does not automatically invoke Miranda. Overrules prior California case law which held just the opposite.

People v. Buskirk (2009) 175 Cal.App.4th 1436, January 2010 LELR at p. 7. Asking for a lawyer at the time of arrest does not invoke Miranda.

MURDER

People v. Trujillo (2010) 181 Cal.App.4th 1344, October 2010 LELR at p. 106. Multiple shots at a car; all occupants are victims of attempted murder or assault with a deadly weapon. All persons within the "zone of harm" are victims.

People v. Perez (2010) 50 Cal.4th 222, September 2010 at p. 104. One shot at a crowd is one count of attempted murder, but it is also a separate count of assault with a deadly weapon as to every person in the crowd.

People v. Robinson (2010) 47 Cal.4th 1104, April 2010 LELR at p. 46. OK to name defendant in criminal complaint as John Doe/DNA profile. This case is of particular importance in rape cases where the attacker's semen is recovered and a DNA profile obtained.

POLLING PLACE CRIMES

Polling Place Crimes, November 2010 LELR at p. 122. Crimes specific to polling places on election day are described.

PREJUDICIAL EVIDENCE

Alcala v. Superior Court (2008) 43 Cal.4th 1205, January 2010 LELR at p. 11. Simply because evidence is strong and convincing does not mean it is subject to exclusion as prejudicial under Evidence Code section 352. Prejudicial evidence defined.

SCHOOL INTERVIEW

Greene v. Camreta (9th Cir. 2009) 588 F.3d 1011, May 2010 LELR at p. 58. Court limits police involvement in the interview of a home child abuse victim while he or she is at school. Note: The United States Supreme Court has accepted this case for review. Its decision will be issued in early 2011 under the title of Alford v. Greene. The 9th Circuit opinion in this case no longer has any legal effect.

SEARCH AND SEIZURE

In re K.S. (2010) 183 Cal.App.4th 72, October 2010 LELR at p. 98. School search.: A school official can conduct a search of a student based upon the New Jersey v. T.L.O. reasonable suspicion standard applicable to school officials even if a police officer is present.

United States v. Smith (9th Cir. 2005) 389 F.3d 944, August 2010 LELR at p. 93. Once officers have probable cause for an arrest, they may conduct a search incident to an arrest even though they have not told the person he is under arrest.

United States v. Vongxay (9th Cir. 2010) 594 F.3d 1111, June 2010 LELR. Raising of arms in response to a request for a consent search is implied consent to search.

Bull v. City and County of San Francisco (9th Cir. 2010) 595 F.3d 964, March 2010 LELR. OK to strip search all prisoners entering general population custodial housing regardless of arrest offense.

United States v. Lemus (9th Cir. 2009) 582 F.3d 958, January 2010 LELR at p. 5. OK for officers to make a "precautionary sweep search" of premises following the arrest of a person within. Sweep limited to adjoining areas from which others who may be hiding could attack officers as they complete the arrest.

SEARCH WARRANTS

United States v. Jennen (9th Cir. 2010) 596 F.3d 594, August 2010 LELR at p. 91. Anonymous tip of dope dealing plus a controlled buy from the dope dealer justifies issuance of a search warrant for the dope dealer's residence.

SEX CRIMES

People v. Nakai (2010) 183 Cal.App.4th 499, October 2010 at p. 100. Internet sex sting to catch child sex predator is lawful. Sting may be conducted by a civilian on his or her own or by an officer pretending to be a child.

THEFT

People v. Zamani (2010) 183 Calk.App.4th 854, September 2010 LELR at p. 106. Misappropriation of lost property is theft. Demanding a reward for the return of lost property is misappropriation of lost property. This is similar to "theft by windfall" where someone uses property which he knows was given to him by mistake as described in People v. Dubrin (1965) 232 Cal.App.2nd 674, summarized in the June 2008 LELR.

People v. O'Dell (2007) 153 Cal.App.4th 1569, January 2010 LELR at p. 9. Auto theft prosecution. Slight corroboration shows defendant knew the vehicle was stolen.

Excessive Loss - Penal Code section 12022.6, January 2010 LELR at p. 1. Loss to victim - either by damage or theft - in excess of $65,000 carries additional penalties. The greater the loss, the greater the additional penalty up to four years in prison if the loss exceeds $3,200,000.

VANDALISM

In re Miguel H. (2010) 180 Cal.App.4th 1429, August 2010 LELR at p. 94. A school is a public place. Possession of vandalism tools and aerosol paint at a school is "possession in a public place."

United States v. Burkett (9th Cir. 2010) 612 F.3d 1103, November 2010 LELR at p. 126. Furtive movements justify pat down of passenger.

In re Arturo D. (2002) 27 Cal.4th 60, November 2010 LELR at p. 123. Police can search sun visor, glove box, under front seat and other places driver's license and registration are commonly kept when traffic violator does not produce these documents.

People v. Shafrir (2010) 183 Cal.App.4th 1238, October 2010 LELR at p. 104. OK to impound a car following the arrest of the driver when there was no one available to drive it lawfully from the scene of the arrest and it could not be left safely where it was on the street in a high crime neighborhood.

People v. Redd (2010) 48 Cal.4th 691, October 2010 LELR at p. 102. OK to arrest a driver for false ID and search him incident to the arrest and impound his car.

People v. Letner and Tobin (2010) 50 Cal.4th 99, September 2010 LELR at p. 98. OK for officers to stop a car based upon a reasonable suspicion of involvement in criminal activity even though there might be an innocent explanation for what the officers saw.

People v. Gomez (2004) 117 Cal.App.4th 117, August 2010 LELR at p. 87. Arrest of driver for minor traffic offense and search of driver incident to the arrest is valid.

United States v. Pineda-Moreno (9th Cir. 2010) 591 F.3d 1212, June 2010 LELR at p. 70. OK to attach a tracking device to the underside of a suspect's car and track its movements. Vehicle must be in a place of public access when officers attach the tracking device.

People v. Dotson (2009) 179 Cal.App.4th 1045, May 2010 LELR at p. 56. OK to stop a car with no license plates. Officer need not drive around the car looking for a temporary operating permit.

United States v. Palos-Marquez (9th Cir. 2010) 591 F.3d 1272, May 2010 LELR at p. 53. OK to stop a vehicle based upon an in-person tip that the vehicle is involved in criminal activity - in this case, smuggling aliens.

United States v. Ruckes (9th Cir. 2009) 586 F.3d 713, March 2010 LELR at p. 27. Otherwise invalid auto search saved by inventory search. Application of "inevitable discovery exception."

WEAPONS

United States v. Garrido (9th Cir. 2010) 596 F.3d 613, July 2010 LELR at p. 890. Lay witnesses can testify that a gun used in a crime was real. Gun need not be produced in court.

In re S.C. (2010) 179 Cal.App.4th 1436, May 2010 LELR at p. 58. Possession of a switchblade knife is illegal even in your own home.
In re David V. (2010) 48 Cal.4th 23, April 2010 LELR at p. 45. Bicycle footrest is not a deadly weapon under PC 12020 even though it is similar to metal knuckles.

PRIVACY NOTICE

The Law Enforcement Legal Reporter subscriber list is maintained in a secure location and is completely confidential. It is never sold, rented or given to anyone for any purpose other than mailing this publication.

SOURCES

The cases summarized in The Law Enforcement Legal Reporter (LELR) are the most recent criminal case decisions of the United States Supreme Court, the United States Court of Appeals for the Ninth Circuit, the California Supreme Court and the California Courts of Appeal. Only those cases of direct interest to police and prosecutors are summarized. Occasionally, older case decisions are summarized when they relate to issues brought up by callers to the LELR.

(End of 2010 Table of Contents)

INDEX TO VOLUME 33 (2009)
THE LAW ENFORCEMENT
LEGAL REPORTER (LELR)

ARREST

People v. Hairston (2009) 174 Cal.App.4th 231, November 2009 LELR at p. 126: Defendant's flight from three pursuing officers is three counts of resisting arrest.

Herring v. United States (2009) 172 L Ed 2d 496, March 2009 LELR at p. 31: Arrest on a recalled arrest warrant does not mandate suppression of evidence seized as a result of the arrest.

ARSON

People v. Carrasco (2008) 163 Cal.App.4th 978, June 2009 LELR at p. 69: Possession of gasoline, gasoline soaked rags and lighter at target location shows attempted arson. Need not start actual fire.

ASSAULT WITH A DEADLY WEAPON

People v. Frazier (2009) 173 Cal.App.4th 613, August 2009 LELR at p. 93: Defendant personally inflicted great bodily injury upon victim by use of a dog.

BURGLARY

People v. Thorn (2009) 176 Cal.App.4th 255, October 2009 LELR at p. 113: Carport can be an inhabited dwelling house for burglary charging purposes.

People v. Henry (2009) 172 Cal.App.4th 530, July 2009 LELR at p. 79: Forcing open the hood of a locked car to steal items is auto burglary.

CHILD ENDANGERING

People v. Perez (2008) 164 Cal.App.4th 1462, May 2009 LELR at p. 58: Illegal drugs and paraphernalia within a home in which a child or children are present constitutes child endangering.

People v. Morales (2008) 168 Cal.App.4th 1075, April 2009 LELR at p. 40: Felony evading with a child in the car is also child endangering. This applies equally when a car is being driven in a reckless fashion even if not being chased.

CRIME CHARGING

People v. Traylor (2009) 46 Cal.4th 1205, November 2009 LELR at p. 130: OK to refile a dismissed felony case as a misdemeanor.

In re Richard G. (2009) 173 Cal.App.4th 1252, October 2009 LELR at p. 114: OK to prosecute a suspect for a crime committed during an unlawful detention.

People v. Davis (2005) 36 Cal.4th 510, April 2009 LELR at p. 44: "Kellett" exception shown based upon newly discovered evidence not reasonably known at time of previous filing of charges arising out of the same act.

DETENTION/STOP AND FRISK

United States v. Johnson (9th Cir. 2009) 581 F.3d 994, December 2009 LELR at p. 134: OK to stop and frisk suspected bank robbers on reasonable suspicion.

People v. Osborne (2009) 175 Cal.App.4th 1052, December 2009 LELR at p. 137: OK to stop and frisk suspected auto burglar. OK to search car when gun found on occupant.

In re Richard G. (2009) 173 Cal.App.4th 1252, October 2009 LELR at p. 114: OK to detain a suspect on an anonymous call; OK to prosecute a suspect for a crime committed during an unlawful detention.

In re H.M. (2008) 167 Cal.App.4th 136, March 2009 LELR at p. 29: OK to detain and pat down a juvenile running through traffic in a gang area.

GREAT BODILY INJURY

People v. Frazier (2009) 173 Cal.App.4th 613, August 2009 LELR at p. 93: Defendant personally inflicted great bodily injury upon victim by use of a dog.

People v. Galvan (2008) 168 Cal.App.4th 846, August 2009 LELR at p. 94: A coma is great bodily injury. It need not be permanent.

JUVENILE LAW

In re Jose C. (2009) 45 Cal.4th 534, June 2009 LELR at p. 71: OK to file a 602 Welfare and Institutions Code petition against a juvenile for a violation of a federal statute.

MAYHEM

People v. Newby (2008) 167 Cal.App.4th 1341, April 2009 LELR at p. 39: Mayhem is shown even though the disfigurement or disability is repairable by surgery.

MIRANDA/CONFESSIONS

United States v. Bassignani (9th Cir. 2009) 575 F.3d 879, November 2009 LELR at p. 121: A workplace interview is not custodial. Miranda admonishment and waiver not necessary.

People v. May (2009) 174 Cal.App.4th 156, November 2009 LELR at p. 124: OK to use a phony polygraph test to obtain statements.

Montejo v. Louisiana (2009) 173 L Ed 2d 955, July 2009 LELR at p. 73: OK for officers to seek to interview a charged and represented defendant. Must give Miranda admonishment and get a waiver prior to the interview. Need not notify defendant's attorney.

People v. Davis (2009) 46 Cal.4th 539, July 2009 LELR at p. 76: OK to ignore Miranda if kidnap victim is still missing. Rescue doctrine applies. Police need not give Miranda admonishment, need not get waiver, and can ignore suspect's request for counsel or to remain silent.

Corley v. United States (2009) 173 L Ed 2d 443, May 2009 LELR at p. 51: Federal Courts limit admissibility of confessions taken more than six hours after arrest. Applies in federal courts only.

People v. Cruz (2008) 44 Cal.4th 636, April 2009 LELR at p. 38: A Miranda wavier can be implied. This is usually shown when defendant begins talking immediately upon stating he understands his rights. "In at least some cases, waiver can be clearly inferred from the actions and words of the person interrogated." "An explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel."

MURDER

People v. Medina (2009) 46 Cal.4th 913, October 2009 LELR at p. 109: All participants in a gang fight killing are guilty of murder as aiders and abettors even though only one of them actually killed the victim.

People v. Felix (2009) 172 Cal.App.4th 1618, September 2009 LELR at p. 103: Shooting into a house can be attempted murder.

People v. Stone (2009) 46 Cal.4th 131, June 2009 LELR at p. 67: Attempted murder is shown when defendant fires at a group. Need not name specific victim.

People v. Pool (2008) 166 Cal.App.4th 904, April 2009 LELR at p. 43: Killing of a woman and her unborn fetus is two counts of murder. This is true even though the killer was unaware the woman was pregnant.

NARCOTICS

United States v. Norwood (9th Cir. 2009) 555 F.3d 1061, April 2009 LELR at p. 46: OK to introduce state employment records to show that defendant had not earned any money from employment. Permits inference that money in defendant's possession was proceeds of drug sales.

PAWNBROKERS

People v. Hernandez (2009) 172 Cal.App.4th 715, October 2009 LELR at p. 118: Statutes govern recovery of stolen property from a pawnbroker.

PREJUDICIAL EVIDENCE

Alcala v. Superior Court (2008) 43 Cal.4th 1205, February 2009 LELR at p. 23: A bald assertion of prejudice does not justify exclusion of evidence per Evidence Code section 352. "There is nothing unfair about the defendant facing an overwhelmingly high likelihood of conviction based on admissible evidence and permissible inferences." 43 Cal.4th at p. 1229. So simply because evidence will guarantee a conviction is not a basis for exclusion.

PRIOR CONVICTIONS

People v. Morris (2008) 166 Cal.App.4th 363, July 2009 LELR at p. 83: CLETS rap sheet admissible in court to prove prior convictions.

ROBBERY

People v. Burns (2009) 172 Cal.App.4th 1251, August 2009 LELR at p. 91: Purse snatch with force is a robbery.

People v. Scott (2008) 45 Cal.4th 743, April 2009 LELR at p. 41: All employees are in constructive possession of their employer's property - so all are victims of a takeover robbery.

SCHOOL CRIMES

In re T. B. (2009) 172 Cal.App.4th 125, October 2009 LELR at p. 117: Multi-tool with a one-inch knife blade at a school is a violation of PC 626.10, subd.(a).

In re Z.R. (2008) 168 Cal.App.4th 1510, May 2009 LELR at p. 56: Box cutter with an exposed blade at a school is a crime - PC 626.10, subd.(a).

SEARCH AND SEIZURE

People v. Sardinas (2009) 170 Cal.App.4th 488, September 2009 LELR at p. 100: Two parole searches within 24 hours are lawful. No showing of harassment.

Safford Unifed School District v. Redding (2009) 174 L Ed 2d 354, August 2009 LELR at p. 85: School strip search limited. Need more reasonable suspicion to do intrusive search, particularly for non-dangerous items.

People v. Lucatero (2008) 166 Cal.App.4th 1110, March 2009 LELR at p. 33: OK for undercover officer to enter a home for sale with a real estate agent. Officer can inspect home as would any prospective home buyer.

SEARCH WARRANTS

People v. Carrington (2009) 47 Cal.4th 145, September 2009 LELR at p. 104: Four principles of search warrant preparation and execution expressed. Officers from other departments can look for items relating to crimes committed within their jurisdictions while searching for items listed on the search warrant. Unlisted items can be seized if recognizable as evidence of other crimes.

Millender v. County of Los Angeles (9th Cir. 2009) 564 F.3d 1143, August 2009 LELR at p. 88: Officers must list specific items to be seized.

United States v. Ankeny (9th Cir. 2007) 502 F.3d 829, July 2009 LELR at p. 81: Unreasonable entry does not mandate suppression of evidence.

United States v. Giberson (9th Cir. 2008) 527 F.3d 882, February 2009 LELR at p. 18: OK to seize and search computers pursuant to a search warrant.

People v. Galland (2008) 45 Cal.4th 354, February 2009 LELR at p. 22: Sealed portion of a search warrant affidavit should be filed with the court clerk for safeguarding.

SURVEILLANCE POINT

People v. Lewis (2009) 172 Cal.App.4th 1426, November 2009 LELR at p. 128: Need not reveal confidential surveillance point if not material to defense. Use of in camera hearing procedure per Evidence Code section 1040.

THEFT

People v. Cuellar (2008) 165 Cal.App.4th 833, May 2009 LELR at p. 52: Defendant show snatches a bad check from a clerk's hand has committed grand theft - as well as uttering a bad check. Entering a store to utter a bad check is also burglary.

THREATENING A PUBLIC OFFICIAL

People v. Barrios (2008) 163 Cal.App.4th 270, February 2009 LELR at p. 15: Prosecution need only show that threat was made; need not show that defendant actually intended to carry out his threat.

TRIAL

People v. Concepcion (2008) 45 Cal.4th 77, May 2009 LELR at p. 57: Defendant flees; trial may proceed. Need not delay trial while defendant is being transported back from place of capture. Flight from trial can be taken as evidence of guilt of charged offense.

VANDALISM

In re Arthur V. (2008) 166 Cal.App.4th 61, February 2009 LELR at p. 13: OK to add up damage costs of multiple offenses of vandalism committed as part of the same course of conduct to constitute a felony.

VEHICLE STOPS AND SEARCHES

People v. Wells (2006) 38 Cal.4th 1078, December 2009 LELR at p. 133: OK to stop a described vehicle based solely upon an anonymous telephone call reporting erratic driving. Officer need not see the erratic driving himself or herself.

Traffic Stop Cases: April 2009 LELR at p. 37: Listing of numerous cases approving of traffic stops based upon reasonable suspicion of various traffic violations.

Ramirez v. City of Buena Park (9th Cir. 2009) 560 F.3d 1012, September 2009 LELR at p. 97: OK to approach a parked car and knock on window to arouse occupant.

People v. Collier (2008) 166 Cal.App.4th 1374, June 2009 LELR at p. 61: Car smells of marijuana; OK pat down passenger. See also People v. Fitzpatrick (1970) 3 Cal.App.3d 824: OK for officers to arrest occupant and search car based upon odor of marijuana emanating from car.

People v. Watkins (2009) 170 Cal.App.4th 1403, June 2009 LELR at p. 62: Traffic stop valid on reasonable suspicion of traffic violation. Probation search valid even though driver gave a false name.

People v. Madrid (2008) 168 Cal.App.4th 1050, June 2009 LELR at p. 65: Can't stop car based on belief a passenger is intoxicated.

Arizona v. Gant (2009) 173 L Ed 2d 485, May 2009 LELR at p. 49: Car search incident to the arrest of an occupant is limited. Officers must have reasonable suspicion that evidence relating to the arrest offense is within the car - or some other lawful basis for a search.

Arizona v. Johnson (2009) 172 L Ed 2d 694, March 2009 LELR at p. 25: OK to pat down an occupant reasonable believed to be armed regardless of reason for car stop. OK to order occupants to exit car.

People v. Gomez (2004) 117 Cal.App.4th 531, January 2009 LELR at p. 1: Arrest of driver for traffic offense is valid. But see Arizona v. Gant (May 2009 LELR at p. 49) which limits the search of a car pursuant to the arrest of an occupant.

People v. Brendlin (2008) 45 Cal.4th 262, January 2009 LELR at p. 5: The arrest of a vehicle occupant based upon an outstanding warrant "cures" a bad car stop. The arrest is valid even though the car stop may have been unjustified.

People v. Hernandez (2008) 45 Cal.4th 295, January 2009 LELR at p. 7: Can traffic stop a car just to check on the validity of a temporary operating permit.

In re Raymond C. (2008) 45 Cal.4th 303, January 2009 LELR at p. 8: OK for officers to traffic stop a car is no plates and no temporary operating permit are visible to a following police car. Police need not try to pass the suspect car to see if there is a temporary operating permit on the windshield.

People v. Logsdon (2008) 164 Cal.App.4th 741, January 2009 LELR at p. 10: OK to stop a car for an unsignaled lane change if another vehicle is within 100 feet of the suspect car even if the other car need not take evasive action as a result of the unsignaled lane change.

WEAPONS

In re T. B. (2009) 172 Cal.App.4th 125, October 2009 LELR at p. 117: Multi-tool with a one-inch knife blade at a school is a violation of PC 626.10, subd.(a).

People v. Yarbrough (2008) 169 Cal.App.4th 303, May 2009 LELR at p. 53: For possession of a concealed or loaded weapon charge, a private driveway can be a public place - unless it is the suspect's own driveway.

In re Z.R. (2008) 168 Cal.App.4th 1510, May 2009 LELR at p. 56: Box cutter with an exposed blade at a school is a crime - PC 626.10, subd.(a).

People v. Plumlee (2008) 166 Cal.App.4th 935, March 2009 LELR at p. 35: A closed switchblade knife in defendant's pocket can be charged as possession of a concealed dirk or dagger - as well as possession of a switchblade.

People v. Monjaras (2008) 164 Cal.App.4th 1432, February 2009 LELR at p. 17: Firearm "real" can be shown by circumstantial evidence. Need not produce actual firearm.

(End of 2009 Table of Contents)

INDEX TO VOLUME 32 (2008)
THE LAW ENFORCEMENT
LEGAL REPORTER (LELR)


ANIMAL CRUELTY

People v. Smith (2007) 150 Cal.App.4th 89, March 2008 LELR at p. 34: Use of a knife to kill a dog adds one year to the sentence for animal cruelty, PC section 597, subd.(a).

ARREST

Virginia v. Moore (2008) 170 L Ed 2d 559, July 2008 LELR at p. 82: Violation of state arrest laws does not mandate suppression of evidence if arrest is constitutional under U.S. Supreme Court case law.

People v. Rios (1956) 46 Cal.2d 297, May 2008 LELR at p. 57: OK to arrest a person who admits the past commission of a crime. In this case, the defendant admitted to an officer that he had injected heroin two weeks prior. His arrest for possession of heroin based on this admission was held valid. Search incident to the arrest was also valid.

United States v. Diaz (9th Cir. 2007) 491 F.3d 1074, March 2008 LELR at p. 25: OK for officer to forcibly enter a residence to serve an arrest warrant. Officer needs probable cause to believe it is the suspect's residence and that he is within the residence. Circumstantial evidence establishing probable cause to believe the suspect is within the residence is sufficient.

United States v. Gooch (9th Cir. 2007) 506 F.3d 1156, 1159, March 2008 LELR at p. 28: "We hold that a valid arrest warrant issued by a neutral magistrate judge, including a properly issued bench warrant for failure to appear, carries with it the limited authority to enter a residence in order to effectuate the arrest . . . regardless of whether that warrant is for a felony, a misdemeanor, or simply a bench warrant for failure to appear."

ASSAULT ON A PEACE OFFICER

People v. Chance (2008) 44 Cal.4th 1164, November 2008 LELR at p. 128: A "thwarted assault" is still an assault. In this case, an officer came up behind an armed suspect who was lying in wait to ambush the officer thereby thwarting the planned attack. The suspect's positioning himself to ambush the officer constituted the assault.

ATTEMPT CRIMES

People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8, March 2008 LELR at p. 29: Hiring and paying a hitman is attempted murder. "Although a definitive test has proved elusive, we have long recognized that whenever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt."

AUTO THEFT

People v. Najera (2008) 43 Cal.4th 1152, September 2008 LELR at p. 102: In auto theft prosecutions, some evidence must be presented to show the defendant knew the car was stolen. Knowledge that the car was stolen will be presumed if the defendant is arrested driving the car in the area of the theft and soon after the theft.

BURGLARY

People v. Calderon (2007) 158 Cal.App.4th 137, July 2008 LELR at p. 77: Kicking in the door of a residence is a completed burglary even though no actual entry was made into the residence by the perpetrator. Penetration into the residence by the victim's own door is sufficient entry to constitute a completed burglary.


People v. Kelly (2007) 154 Cal.App.4th 961, January 2008 LELR at p. 9: Slingshot and box cutters are burglary tools under Penal Code section 466.

CARJACKING

People v. Cabrera (2007) 152 Cal.App.4th 695, January 2008 LELR at p. 8: Defendant can be convicted of carjacking his own car. Carjacking is a crime against possession, not ownership. Defendant jointly owned car with his girlfriend.

CHILD ENDANGERMENT

People v. Valdez (2002) 27 Cal.4th 778, August 2008 LELR at p. 95: Leaving a baby or small child unattended in a hot car is child endangerment.

CRIMINAL THREATS

People v. Mosley (2007) 155 Cal.App.4th 313, March 2008 LELR at p. 32: Peace officers can be victims of Penal Code section 422, Criminal Threats. This case involved very direct threats made by jail inmates to sheriff deputies.

DOMESTIC VIOLENCE

People v. Saracoglu (2007) 152 Cal.App.4th 1584, January 2008 LELR at p. 3: Spontaneous utterances of domestic violence victim made to responding police officer are admissible at trial even if the victim does not testify. Victim, still shaking and crying, described how her husband had beaten and threatened her.

People v. Johnson (2007) 150 Cal.App.4th 1467, January 2008 LELR: OK to charge multiple counts in one extended beating. "It follows that where multiple applications of physical force result in separate injuries, the perpetrator has completed multiple violations of section 273.5." 150 Cal.App.4th at p. 1477.

DRIVING UNDER THE INFLUENCE

Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, November 2008 LELR at p. 121: It is lawful for an officer in an unmarked car to make a traffic stop of a suspected DUI driver. If one officer observes erratic driving and makes a traffic stop and another officer then takes over, administers Field Sobriety Tests and tells the motorist he is under arrest, the law considers both officers as having made the arrest.

Troppman v. Valverde (2007) 40 Cal.4th 1121, February 2008 LELR at p. 19: OK for an officer to arrest a motorist for driving under the influence even though he did not see the motorist driving. Suspension for refusal to take blood test was upheld.

People v. Martinez (2007) 156 Cal.App.4th 851, May 2008 LELR at p. 52: Officer need not see defendant drive - or even sit behind the wheel - to make a valid arrest for DUI. In this case, the position of the car, engine running, lights on and stopped at an angle to the curb and the defendant nearby who was intoxicated and admitted driving the car was sufficient to justify his arrest.

GRAFFITI

In re Angel R. (2008) 163 Cal.App.4th 905, 914, October 2008 LELR at p. 117: Gummed stickers bearing suspect's gang's initials were "graffiti tools" per Penal Code section 594.2. "These items could be used to quickly mark the surfaces without the time expenditure that either painting or writing would require. . . . Thus, they fall within the definition of an implement as proscribed by statute."

MIRANDA/CONFESSIONS

People v. Cruz (2008) 44 Cal.4th 636, 667, November 2008 LELR at p. 126: Waiver of Miranda rights can be implied. "A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights."

Anderson v. Terhune (9th Cir. 2008) 516 F.3d 781, October 2008 LELR at p. 119: "I plead the Fifth" stated during interrogation is an assertion of the right to remain silent.

Rothgery v. Gillespie County (2008) 171 L Ed 2d 366, August 208 LELR at p. 94: The Sixth Amendment right to counsel attaches at the defendant's initial arraignment. This reverses a prior California case (People v. Viray) which stated that the right to counsel attached at the filing of a criminal complaint.

People v. Zamudio (2008) 43 Cal.4;th 327, August 2008 LELR at p. 85: Police station interview is not necessarily custodial. Person who comes to station to be interviewed need not be Mirandized so long as he is given no reason to believe he is under arrest. It does not matter that the police consider the person a suspect.

United States v. Rodriguez (9th Cir. 2008) 518 F.3d 1072, July 2008 LELR at p. 80: Initial waiver of Miranda rights must be unambiguous. Defendant's statement, "I'm good for tonight" was not a waiver.

People v. Jefferson (2008) 158 Cal.App.4th 830, June 2008 LELR at p. 64: OK to monitor and record conversations of arrestees in a holding cell. See also People v. Davis (2005) 36 Cal.4th 510, 517, November 2005 LELR at p. 124, which said: "pretrial detainees can have no legitimate expectation that their jailhouse conversations will not be monitored or recorded."

Colorado v. Spring (1987) 479 U.S. 564, May 2008 LELR at p. 55: Miranda advisement need not name crime(s) under investigation. OK to arrest defendant for one offense, give Miranda advisement and get waiver, and then ask questions about a completely different crime.

People v. Simons (2007) 155 Cal.App.4th 948, February 2008 LELR at p. 13: After an initial waiver of Miranda rights, a subsequent invocation during the interview must be unequivocal. "If a suspect makes reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, the comment does not require the cessation of questioning." 155 Cal.App.4th at p. 957.

People v. Macklem (2007) 149 Cal.App.4th 674, February 2008 LELR at p. 16: OK to interview jail inmate without a Miranda advisement and waiver if he is not subjected to additional restraint. See also Cervantes v. Walker (1978) 589 F.2d 424, 427-428.

People v. May (1988) 44 Cal.3d 309, February 2008 LELR at p. 23: Confession evidence can be suppressed only if suppression is mandated by a decision of the United States Supreme Court. There are no longer "independent state grounds" for suppression of confessions.

MURDER

Alcala v. Superior Court (2008) 43 Cal.4th 1205, September 2008 LELR at p. 101: If multiple murders are "connected together in their commission" they all may be charged in one pleading in one county even if they are committed in different counties. "Connected together in their commission" means there must be "a common element of substantial importance in their commission." Defendant Alcala was properly charged with multiple murders in a single county when all victims were young, single females who all suffered blunt force trauma to the face and all of whom were raped.

POLICE USE OF DEADLY FORCE

Long v. City and County of Honolulu (9th Cir. 2007) 511 F.3d 901, 906, April 2008 LELR at p. 37: "The use of deadly force is reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." OK for officers to shoot a man who is firing a gun at them. OK for officers to await the arrival of an armored car before entering the area where an armed suspect, who may or may not have been wounded or dead, was located.

POLLING PLACE CRIMES

Elections Code sections 18000 to 18578. May 2008 LELR at p. 49. Various polling place crimes described.

PRESUMPTION OF INNOCENCE

Bell v. Wolfish (1979) 441 U.S. 520, February 2008 LELR at p. 20: Presumption of innocence applies at trial only. "The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials . . ." 441 U.S. at p. 533.

PUBLIC INTOXICATION

In re R. K. (2008) 160 Cal.App.4th 1615, August 2008 LELR at p. 92: An enclosed woodshed in the side yard of a house is not a "public place" within the meaning of Penal Code section 647, subd.(f). It is not a crime to be drunk in such a woodshed. A public place is one which is "open to common or general use, participation, enjoyment, etc." "In other words, a public place is a location readily accessible to all those who wish to go there. . ."

ROBBERY

People v. Gomez (2008) 43 Cal.4th 249, June 2008 LELR at p. 61: A theft from a restaurant becomes a robbery when the thief threatens the restaurant owner with a gun in order to get away with the loot. This is known as an Estes robbery. People v. Estes (1983) 147 Cal.App.3d 23 held that theft becomes robbery when the thief uses force or fear against the property owner to get away with the stolen property.

People v. Villa (2007) 157 Cal.App.4th 1429, November 2008 LELR at p. 130: When a shoplifter fights with a store clerk to get away with the stolen property, this converts the theft to a robbery. This is an Estes robbery.

SEARCH AND SEIZURE

People v. Gemmill (2008) 162 Cal.App.4th 958, October 2008 LELR at p. 114: Officers found an unattended two year old boy in the street. Neighbors pointed to his residence. It was permissible for officers to knock on the door of the residence and, when no one answered, to walk around the perimeter of the house looking in windows. Exigent circumstances entry to look for possibly disabled caretaker of the child would also be permissible.

People v. Parson (2008) 44 Cal.4th 332, October 2008 LELR at p. 110: OK for officers to enter and search an abandoned motel room. Defendant has no standing to object to a search and seizure of property he has abandoned. Abandonment determined by objective factors.

People v. Chavez (2008) 161 Cal.App.4th 1493, September 2008 LELR at p. 97: OK for officers to stand on tiptoes to look over a six foot fence while standing in a place of public access.

United States v. Snipe (9th Cir. 2008) 515 F.3d 947, July 2008 LELR at p. 73: Excited 911 cell phone call to "get the cops here now" justified an exigent circumstances entry into a residence. Caller gave address of the residence.

People v. Medina (2007) 158 Cal.App.4th 1571, 1580, June 2008 LELR at p. 66: Police may conduct a suspicionless search of a person with a search and seizure probation condition. "Under this state's body of law, a suspicionless search pursuant to a probation search condition is not prohibited by the Fourth Amendment." Please recall that a suspicionless search of a parolee is valid per Samson v. California (2006) 165 L Ed 2d 250, July 2006 LELR at p. 78.

People v. Ramirez (2007) 148 Cal.App.4th 1464, January 2008 at p. 11: Search and seizure case law applies to tribal police.

In re Lance W. (1985) 37 Cal.3d 873, February 2008 LELR at p. 21: Evidence can be suppressed only if suppression is mandated by a decision of the United States Supreme Court. "The circumstances to which the federal exclusionary rule must be applied as a sanction in order to deter future unlawful conduct by police or other state agents are defined by the United States Supreme Court." 37 Cal.3d at p. 882. There is no longer a "vicarious exclusionary rule" in California law. There are no longer "independent state grounds" for suppression of evidence in California.

SEARCH WARRANTS

United States v. Davis (9th Cir. 2008) 530 F.3d 1069, December 2008 LELR at p. 136: OK for officers to detain and question the driver of a vehicle entering the premises where a search warrant is being served. OK to search the vehicle if driver is connected to the premises.

People v. Varghese (2008) 162 Cal.App.4th 1084, November 2008 LELR at p. 124: While serving a search warrant, officers may seize and access computers in the suspect's car and residence as "dominion and control" evidence. See also People v. Balint (2006) 138 Cal.App.4th 200, October 2006 LELR at p. 113, which held the same.

United States v. Hurd (9th Cir. 2007) 499 F.3d 963, April 2008 LELR at p. 43: Minor errors do not invalidate a search warrant. In this case, the judge did not initial a particular blank line.

People v. Llamas (1997) 51 Cal.App.4th 1729, May 2008 LELR at p. 59: Spouse can be convicted of theft of community property. In this case, husband stole wife's car. This is grand theft auto. Does not apply to VC 10851, joyride.

TRAFFIC

People v. Binkowski (2007) 157 Cal.App.4th Supp 1, 6, July 2008 LELR at p. 79: OK to stop and cite a car for stopping with any part of the car past the limit line. "We hold Vehicle Code section 22450's language "stop at a limit line" mandates a full stop before any part of the vehicle crosses the limit line."

Dept of California Highway Patrol v. Superior Court (Quigley) (2008) 158 Cal.App.4th 726, May 2008 LELR at p. 54: Helmet law violation is not a "fix it" ticket. A standard citation can be issued for a helmet law violation. But a fix it ticket can be issued at officer's discretion.

VANDALISM

People v. Kahanic (1987) 196 Cal.App.3d 461, April 2008 LELR at p. 46: Spouse can be convicted of vandalizing community property. See also People v. Wallace (2004) 123 Cal.App.4th 144, March 2005 LELR, which holds the same.

VEHICLE STOPS AND SEARCHES

People v. Duncan (2008) 160 Cal.App.4th 1014, August 2008 LELR at p. 91: OK to traffic stop a car with an upside down license plate. Vehicle code section 5201 requires that plates be "clearly legible." Upside down plate is not clearly legible.

United States v. Turvin (9th Cir. 2008) 517 F.3d 1097, 1100, August 2008 LELR at p. 88: At vehicle traffic stop, officers may ask occupants questions unrelated to the car 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."

People v. Cantor (2007) 149 Cal.App.4th 961, June 2008 LELR at p. 68: Consent for "real quick" search of car is limited. Thorough 15 minute search of car exceeded the scope of the consent.

People v. Colbert (2007) 157 Cal.App.4th 1068, May 2008 LELR at p. 50: Air freshener hanging from rear view mirror and appearing to obstruct the driver's view through windshield justifies a traffic stop. It is a violation of Vehicle Code section 26708, subd.(a)(2).

United States v. Diaz-Castaneda (9th Cir. 2007) 494 F.3d 1146, January 2008 LELR at p. 1: Police officers need no reasonable grounds or reasonable suspicion whatsoever in order to run the license plates on vehicles they see. Officers can run plates at random. Officers can ask passengers for identification without any legal basis for doing so.

WEAPONS

People v. Grubb (1965) 63 Cal.2nd 614, December 2008 LELR at p. 133: Baseball bat may be a "billy." Other innocent items may also be deadly weapons per PC 12020 depending upon the circumstances of their possession.

In re Angel R. (2008) 163 Cal.App.4th 905, October 2008 LELR at p. 117: A knife with a 2 inch or longer blade that opens with a "flip of the wrist" is a switchblade even though it was not originally designed and manufactured to open this way.

People v. Rodriguez (1999) 20 Cal.4th 1, 13, September 2008 LELR at p. 107: Circumstantial evidence can show that a brandished gun was real and was loaded. The actual weapon need not be recovered or presented or court. "A defendant's own words and conduct in the course of an offense may support a rational fact finder's determination that he used a loaded weapon."

People v. Ross (2008) 162 Cal.App.4th 1184, September 2008 LELR at p. 105: An arrestee with a knife in her underpants was properly convicted of bringing a weapon into a jail. It is OK to ask an arrestee if he or she is carrying weapons prior to entering the jail booking facility and to advise them that carrying a weapon into the jail is a crime. If the arrestee surrenders the weapon, crime of bringing a weapon into a jail has not been committed.

People v. Wileyto introduce a weapon at trial for demonstration purposes even though it was not the actual weapon used in the crime. Applies to other objects too, such as a pry bar used to jimmy a door.

WITNESSES

People v. Foster (2007) 155 Cal.App.4th 331, April 2008 LELR at p. 44: Dissuading a witness through the use of a third party violates Penal Code section 136.1, subd.(a)(2).

(End of 2008 Table of Contents)

INDEX TO VOLUME 31 (2007)
THE LAW ENFORCEMENT
LEGAL REPORTER (LELR)

Note: 200 Cases Every Peace Officer, Prosecutor and Judge Should Know appears in the February 2007 issue.

ARREST

United States v. Garcia-Beltran (9th Cir. 2006) 443 F.3d 1126, August 2007 LELR at p. 94: The identity and body of a defendant discovered as a result of an illegal arrest is not subject to suppression. "The 'body' or identity of a defendant . . . in a criminal or civil proceeding is never itself suppressible as fruit of an unlawful arrest."

ATTEMPTED CRIMES

People v. Medina (2007) 41 Cal.4th 685, November 2007 LELR at p. 129: An attempt to commit a crime requires two elements: a specific intent to commit the crime and a direct but ineffectual act towards its commission. In this case, a written criminal threat which was never delivered to the victim was properly prosecuted as an attempted criminal threat.

BURGLARY

People v. Villalobos (2006) 145 Cal.App.4th 310, May 2007 LELR at p. 55: "We will therefore hold that a hotel or motel room which is currently rented as a temporary habitation is an inhabited dwelling for purposes of first degree robbery and burglary, regardless of the length of time for which the room is rented." This is true even if no one is in the room at the time of the burglary.

CARJACKING

People v. Medina (2007) 41 Cal.4th 685, November 2007 LELR at p. 129: Failed attempt to commit a carjacking is attempted carjacking and attempted kidnapping of all persons within the vehicle.

CHILD SEXUAL EXPLOITATION

People v. Hobbs (2007) 152 Cal.App.4th 1, December 2007 LELR at p. 136: Using a hidden camera to film high school girls changing clothes can be a felony - PC 311.4 (c).

CONSENSUAL ENCOUNTERS

United States v. Orman (9th Cir. 2007) 486 F.3d 1170, September 2007 LELR at p. 100: Police may approach a man at a shopping mall and ask if he is carrying a gun. "Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, or by putting questions to him if the person is willing to listen."

United States v. Crapser (9th Cir. 2006) 472 F.3d 1141, June 2007 LELR at p. 67: "Knock and talk" at dwelling is lawful. No reasonable suspicion need be shown to do so.

CRIMINAL THREATS

In re Sylvester C. (2006) 137 Cal.App.4th 601, January 2007 LELR at p. 10: One who tries to make a criminal threat but is unsuccessful in doing so can be prosecuted for attempted criminal threats. A criminal threat made to a victim who does not hear it - or is not frightened by it - is an attempted criminal threat.

DETENTION AND PAT DOWN

People v. Lindsey (2007) 148 Cal.App.4th 1390, September 2007 LELR at p. 97: Police may detain a person based upon a phone call giving a firsthand, detailed and contemporaneous report that the person was engaging in conduct posing a grave risk to the caller and/or anyone nearby. Detention is valid even if call is anonymous. In this case, the anonymous caller described a man who had just shot a gun outside her home.

People v. Dolly (2007) 40 Cal.4th 458, March 2007 LELR at p. 25: This case says that when an anonymous 911 caller says that he just saw violent criminal conduct - or the threat of violent criminal conduct - which endangers public safety and if he describes what he saw in detail and where it happened that information alone establishes reasonable suspicion justifying an investigative detention by officers so long as any innocent details that can be corroborated are corroborated. This would include a description of a perpetrator, a car, a location and any other details given. Police need see no criminal activity or suspicious activity themselves in order to justify an investigative stop under such circumstances.

In re Jose Y. (2006) 141 Cal.App.4th 748, March 2007 LELR at p. 32: School police can detain and pat down unknown persons they see on the school grounds. No additional justification for detention and pat down need be shown.

DOMESTIC VIOLENCE

United States v. Black (9th Cir. 2006) 482 F.3d 1035, June 2007 LELR at p. 70: Police may forcibly enter residence on reasonable belief that a domestic violence victim is inside and in need of assistance. Court referred to this as a "Welfare Search" entry. Note: correct citation is 482 F.3d 1035. Please change June issue to show this.

People v. Burton (2006) 143 Cal.App.4th 447, April 2007 LELR at p. 43: Severe beating of wife constitutes torture. "The circumstances of the offense can establish the intent to inflict extreme pain. Smashing victim's teeth out with a hammer constitutes torture." 143 Cal.App.4th at p. 452. In this case, victim's face was slashed severely, and defendant said he wanted to "fuck her up where nobody else would want her."

DRINKING/DRUNK IN PUBLIC

People v. Krohn (2007) 149 Cal.App.4th 1294, October 2007 LELR at p. 117: Fenced and gated yard is not a public place.

EVADING

People v. Bellacosa (2007) 147 Cal.App.4th 868, July 2007 LELR at p. 80: If a car chase crosses state lines, the offender can be prosecuted for felony evading in both states. Felony evading charge in Nevada does not preclude prosecution in California for that portion of the chase which took place in California.

People v. Mutuma (2006) 144 Cal.App.4th 635, May 2007 LELR at p. 51: Three traffic violations constitute felony evading even if the driving did not endanger others.

HEARSAY

People v. Pedroza (2007) 147 Cal.App.4th 784, July 2007 LELR at p. 81: Spontaneous statements - and answers to questions while under the stress of a traumatic event - are admissible at trial. "The victim's response, given minutes after she had sustained severe burns and while she was still suffering from the resulting intense pain, certainly suggests her statements were the product of the stress of the moment, not deliberation."

JAIL PRIVACY

People v. Windham (2006) 145 Cal.App.4th 881, May 2007 LELR at p. 53: OK to monitor and record jail and prison inmates' outgoing phone calls if notice of such monitoring and recording is given to the inmates.

KIDNAPPING

People v. Medina (2007) 41 Cal.4th 685, November 2007 LELR at p. 129: Failed effort to carjack van with five occupants is five counts of attempted kidnapping.

People v. Corcoran (2006) 143 Cal.App.4th 272, April 2007 LELR at p. 40: Ten foot movement of victims into back room which increased their risk of harm is kidnapping for the purposes of robbery.

LINEUPS

People v. Cook (2007) 40 Cal.4th 1334, October 2007 LELR at p. 116: 1) Live lineup may be conducted even though the witness previously picked suspect's photo in a photo lineup. 2) "There is no requirement that a defendant in a lineup must be surrounded by people nearly identical in appearance."

MIRANDA/CONFESSIONS

People v. Leonard (2007) 40 Cal.4th 1370, October LELR at p. 113: 1) OK to interview suspect at police station without Miranda admonishment if suspect is told he is free to go. 2) Arrestee need not be Mirandized before being allowed to speak to father. Confession made to father admissible in court.

People v. Riva (2003) 112 Cal.App.4th 981, August 2007 LELR at p. 89: 1) An express waiver of Miranda rights is not required. "Decisions of the United States Supreme Court have held an express waiver is not required where the defendant's conduct makes clear a waiver is intended." This usually comes into play when an arrestee begins talking as soon as he states he understands his rights. In such an instance, the interrogator need not interrupt arrestee and seek an express waiver. 2) A re-interrogation following an initial interrogation is valid without a new Miranda admonishment and waiver.

People of Territory of Guam v. Ichiyasu (9th Cir. 1988) 838 F.2d 353, August 2007 LELR at p. 93: Simply giving a Miranda admonishment is not interrogation. A statement spontaneously made by an arrestee while being given Miranda admonishment is admissible at trial. Interrogation encompasses both express questioning and "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect."

People v. Perdomo (2007) 147 Cal.App./4th 605, July 2007 LELR at p. 75: A non-coercive interview of a hospitalized suspect being treated for crash injuries is valid.

People v. Smith (2007) 40 Cal.4th 483, April 2007 at p. 37: 1) Need not give a new Miranda admonishment prior to a reasonably contemporaneous re-interrogation. In this case there was a 12 hour interval between the first and second interrogation. 2) Lying to the arrestee about a phony "Neutron Proton Negligence Intelligence Test" did not invalidate his confession. "Police deception does not necessarily invalidate an incriminating statement." 40 Cal.4th at p. 505.

People v. Terrell (2006) 141 Cal.App.4th 1321, March 2007 LELR at p. 30: Police can tape arrestee's side of phone call he made to his mother while left alone in the police interrogation room.

MURDER

People v. Shabazz (2006) 38 Cal.4th 55, June 2007 LELR at p. 69: Transferred intent doctrine applies in gang murders. Defendant intends to kill A but kills B instead. He is still guilty of first degree murder with a gang allegation.

People v. Hoang (2006) 145 Cal.App.4th 264, May 2007 LELR at p. 49: In gang fight situations, it is so common for weapons to be used that all participants in the fight will be held criminally liable if a weapon is used by any fellow gang member participating in the fight. If Gang A and Gang B are fighting with fists and suddenly a member of Gang A pulls a knife and stabs a member of Gang B, all members of Gang A participating in the fight are guilty of assault with a deadly weapon - or murder if the victim dies.

RECEIVING STOLEN PROPERTY

People v. Alvarado (2006) 144 Cal.App.4th 1146, June 2007 LELR at p. 68: OK to file charges of receiving stolen property (Penal Code section 496) in the county where the property was stolen or in the county where the property was received. See also Penal Code section 786.

SEARCH AND SEIZURE

In re Frank V. (1991) 233 Cal.App.3d 1232, December 2007 LELR at p. 133: OK to order persons to show their hands whether at a traffic stop, consensual encounter, bystanders or detainees.

People v. Rivera (2007) 41 Cal.4th 304, August 2007 LELR at p. 87: Officers need not corroborate an anonymous tip in order to conduct a "knock and talk" at a residence. "Even if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search."

United States v. Ziegler (9th Cir. 2007) 474 F.3d 1184, April 2007 LELR at p. 47: Police may conduct a warrantless search of an employee's company owned computer for child pornography when company policy states that such computers are subject to monitoring by the company and the company agrees to the warrantless search.

In re Jaime P. (2006) 40 Cal.4th 128, March 2007 LELR at p. 35: Later discovery of a search and seizure condition will not "cure" an otherwise unreasonable search.

United States v. Decoud (9th Cir. 2006) 456 F.3d 996, January 2007 LELR at p. 1: Disclaimer of ownership negates "standing." "Decoud fails to 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 U.S. at pp. 1007- 1008.

People v. Hunter (2006) 140 Cal.App.4th 1147, January 2007 LELR at p. 6: Parole search condition continues even though parolee is incarcerated. Parole search condition terminates only upon formal revocation of parole by Department of Corrections, Board of Prison Terms. Law is the same as to probationers with a search condition. Until probation is formally revoked, search condition remains in effect. See People v. Barkins (1978) 81 Cal.App.3d 30, which so holds.

SEARCH WARRANTS

United States v. Hector (9th Cir. 2007) 474 F.3d 1150, December 2007 LELR at p. 137: There is no constitutional requirement that a search warrant be displayed at the time of its service and failure to do so is not a basis for suppression of evidence. Nevertheless, it is recommended that a copy of the face sheet of the search warrant be displayed to the occupant at the time of service.

SEX CRIMES

In re Shannon T. (2006) 144 Cal.App.4th 618, May 2007 LELR at p. 56: Pinching a woman's breast is sexual battery per Penal Code section 243.4.

People v. Massie (2006) 142 Cal.App.4th 365, April 2007 LELR at p. 46: Severe beating of rape victim is torture. "Defendant utilized several different methods of inflicting pain, including choking, bending C.T.'s body to the point that she suffered a compression fracture to a vertebrae, cutting her with broken glass, dragging her by the hair, stomping her face with his boot heels and kicking her in the face. When defendant could not find his knife, he manufactured a weapon by breaking the glass from a picture frame, which indicated a thought process rather than blind rage. . . . The evidence overwhelmingly supports the jury's finding that defendant harbored the intent to inflict cruel and extreme pain." 142 Cal.App.4th at pp. 372-373.

STALKING

People v. Corpuz (2006) 38 Cal.4th 994, January 2007 LELR at p. 8: Stalking in violation of a term of probation - or any court order - can be prosecuted as felony stalking.

SUBPENA DUCES TECUM

Defense attorney's use of a subpena duces tecum served directly upon a police agency for police records is invalid. Defendant must follow the Discovery and/or "Pitchess Motion" procedures set forth in the Penal Code and Evidence Code. November 2007 LELR at p. 130.

THEFT

In re Jesus O. (2007) 40 Cal.4th 859, July 2007 LELR at p. 78: A suspect causing a person to drop an item and then taking it and running off with it has committed grand theft person. If force or fear was used to get the person to drop the item the suspect has committed robbery.

People v. Durbin (1965) 232 Cal.App.2nd 674, June 2007 LELR at p. 65: Taking for your own use something which has been mistakenly given to you is "theft by windfall."

TORTURE

People v. Burton (2006) 143 Cal.App.4th 447, April 2007 LELR at p. 43: Severe beating of wife constitutes torture. "The circumstances of the offense can establish the intent to inflict extreme pain. Smashing victim's teeth out with a hammer constitutes torture." 143 Cal.App.4th at p. 452. In this case, victim's face was slashed severely, and defendant said he wanted to "fuck her up where nobody else would want her."

People v. Massie (2006) 142 Cal.App.4th 365, April 2007 LELR at p. 46: Severe beating of rape victim is torture. "Defendant utilized several different methods of inflicting pain, including choking, bending C.T.'s body to the point that she suffered a compression fracture to a vertebrae, cutting her with broken glass, dragging her by the hair, stomping her face with his boot heels and kicking her in the face. When defendant could not find his knife, he manufactured a weapon by breaking the glass from a picture frame, which indicated a thought process rather than blind rage. . . . The evidence overwhelmingly supports the jury's finding that defendant harbored the intent to inflict cruel and extreme pain." 142 Cal.App.4th at pp. 372-373.

VEHICLE PURSUITS

Scott v. Harrisfor police to ram fleeing car to terminate dangerous high speed pursuit. "A police officer's attempt to terminate a dangerous high-speed car 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."

VEHICLE STOPS AND SEARCHES

In re Frank V. (1991) 233 Cal.App.3d 1232, December 2007 LELR at p. 133: OK to order passengers to show their hands at a traffic stop.

People v. Vibanco (2007) 151 Cal.App.4th 1, November 2007 LELR at p. 121: OK to order driver and passengers out of a lawfully stopped car, to sit on the curb or to remain in the car.

People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, November 2007 LELR at p. 124: OK to take lawfully seized car to crime lab for forensic examination. Need not conduct search in the field.

People v. Strasburg (2007) 148 Cal.App.4th 1052, November 2007 LELR at p. 126: OK for an officer to search a car on probable cause to believe it contains marijuana even though the driver shows a medical marijuana card.

People v. Hoyos (2007) 41 Cal.4th 872, October LELR at p. 109: OK to impound car when neither driver nor passenger has a valid license. OK to detain driver and passengers during inventory search.

Arburn v. Dept of Motor Vehicles (2007) 151 Cal.App.4th 1480, September 2007 LELR at p. 103: Police may traffic stop a car observed to be weaving even though it stays within its own lane. "Weaving within a lane is a widely-recognized characteristic of an intoxicated driver and recognizing a weaving driver is undoubtedly within the province of even the most junior officer."

People v. Neibauer (1989) 214 Cal.App.3d 1278, September 2007 LELR at p. 105: Police may traffic stop a car to issue a citation for a tinted windshield and/or side windows that appear darker than factory tint. Generally, anything darker than factory tint violates Vehicle Code section 26708.

Brendlin v. California (2007) 168 L Ed 2d 132, August 2007 LELR at p. 85: 1) Police can control driver and passengers of a lawfully stopped auto. 2) Both driver and passengers have "standing" to object to the stop of a car.

United States v. Mendez (9th Cir. 2007) 476 F.3d 1077, July 2007 LELR at p. 73: At a traffic stop - or any other lawful stop - police can ask questions unrelated to the reason for the car stop and can run a records check on the driver. "We have held repeatedly that mere police questioning does not constitute a seizure." "A records check is an expected part of a traffic stop."

United States v. Choudhry (9th Cir. 2006) 461 F.3d 1097, March 2007 LELR at p. 29: This case states clearly that if officers see an illegally parked car and the car drives off, officers may stop the car for the parking violation just as they may stop a car for a moving violation. The car stop is valid even if the officers real reason for stopping the car is the hope of finding evidence of a more serious crime - a so called "pretext stop" which was ruled valid in Whren v. United States (1996) 517 U.S. 806.

United States v. Hartz(9th Cir. 2006) 458 F.3d 1011, January 2007 LELR at p. 4: Report of carjacking and license plate held on by "zip ties"justifies stop of suspected carjacked vehicle even though it did not bear the plate of the carjacked vehicle. Police suspected a license plate switch.

VENUE

People v. Bellacosa (2007) 147 Cal.App.4th 868, July 2007 LELR at p. 80: If a car chase crosses state lines, the offender can be prosecuted for felony evading in both states. Felony evading charge in Nevada does not preclude prosecution in California for that portion of the chase which took place in California.

People v. Alvarado (2006) 144 Cal.App.4th 1146, June 2007 LELR at p. 68: OK to file charges of receiving stolen property (Penal Code section 496) in the county where the property was stolen or in the county where the property was received. See also Penal Code section 786.

WEAPONS

In re Martin Alonzo L. (2006) 142 Cal.App.4th 92, April 2007 LELR at p. 42: A wallet with protruding metal spikes falls within the definition of "metal knuckles" per PC 120210, subd.(c)(7). The wallet and spikes arrangement increases the force of the blow ordinarily inflicted by a bare fist and protects the fist from injury.

(End of 2007 Table of Contents)

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