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Evidence properly
admitted where “knock & talk” resulted in voluntary, consensual
encounter between police and defendant.
During a legal
search following a traffic stop, a deputy sheriff found a pressure
cooker. The deputy guessed it might be used for making meth and not
home canning. The driver said the pressure cooker belonged to
Gunner Crapser, who was staying at a nearby motel. After enlisting
the aid of some other uniformed deputies and a detective, they went
to the motel with the idea of doing a “knock & talk.” There, they
learned the room was rented to a woman. Four deputies went to the
door and one knocked on the door. The woman pulled back the current
and said she would open the door in response to the deputy’s
request. About two minutes later, Crapser and the woman came out
and shut the door behind them. The couple agreed to speak to
deputies and were separated for the interviews. During the
conversation, Crapser became visibly nervous, including trembling
hands and a pulsating neck artery. As soon as a deputy asked about
drugs, Crapser suddenly pulled a loaded syringe from his back
pocket. He agreed to a search of his person, where more syringes
and some meth were found in his pocket, and he was arrested. Both
occupants gave written consent to search the room. Deputies found a
9mm pistol and a shotgun in Crapser’s duffel bag. He pled to being
a felon in possession of firearms, reserving the right to appeal his
claim that he had been detained and patted him down without
reasonable suspicion and his roon had been illegally searched.
The 9th
Circuit affirmed. Though the pressure cooker caused the deputy to
suspect meth manufacturing, its connection to Crapser was the
uncorroborated statement of the driver. So, after police knocked on
the door, they waited patiently, even though they could hear
movement inside. No weapons were drawn or demands made. The knock
& talk resulted in a voluntary, consensual conversation between
Crapser and the police. Crapser voluntarily surrendered the loaded
syringe which would have justified a patdown, but he was asked, and
gave, consent for a further search. Both Crapser and the
co-occupant gave consent to search the room. His suppression motion
was properly denied.
SHORT BRIEFS
People v. Dolly,
Calif. Supreme Court, 07 D.A.R. 1443 (an anonymous tip containing
indicia of reliability can justify detention), discussed in
Update # 188 (May 12, ’05), has been affirmed by our Supreme Court.
People v. Coleman,
2nd
DCA, 07 D.A.R. 1054 -- Taking car keys from the victim who is not
the owner, driver, or passenger, and not in proximity to the car, is
not carjacking.
Ortega had access
to a closet where her employer hung the keys to his personal
vehicle, but was not responsible for the keys. Coleman entered,
pointed a gun at Ortega, and demanded the keys. He was convicted of
carjacking. Ortega was not a person PC215 was intended to protect.
U.S. v. Black,
9th
Circuit, 06 D.A.R. 14246 -- Totality of circumstances presented
in DV complaint may justify warrantless search of suspect’s
residence.
Police arrived
within three minutes of a 911 call from a DV victim who had fled
Black’s apartment and wanted to retrieve her property. Informed
that Black had a gun, police used the victim’s key, after knocking,
for a security sweep, before letting her re-enter. They found a
gun. Black was convicted of being a felon in possession of a
firearm. Under these facts, the search was legal.
January 25,
2007
Where jail has a
published policy of recording all outgoing inmate calls, inmates
impliedly consent to such recording by using the phones.
Windham was jailed
for beating his girlfriend. While he was in jail, he made
outgoing calls that were recorded pursuant to the jail’s policy.
Inmates were informed of this policy on jail rules distributed upon
entry, on signs posted near the phones, and in a phone message at
the beginning of each call. Twelve of the he-man’s phone calls
made some reference to the incident. The prosecutor obtained
copies of the recordings for use in his case and Windham moved to
suppress them. His motion was denied; he was convicted, and
appealed. He claimed the recordings violated California’s
Invasion of Privacy Act, PC630 et seq., and federal wiretap laws.
The 1st
DCA affirmed. By using the phones, Windham impliedly consented
to his calls being recorded. Absent the presence of some legal
privilege, an inmate’s implied consent allows law enforcement
officers to record inmate conversations without violating any
California statute. The same theory of implied consent applies
to the federal Title III wiretaps laws, which allows for the
monitoring and recording of outgoing inmate calls in correctional
facilities.
FELON
IN POSSESSION
Possession of the
frame, receiver, or barrel of a gun by itself is sufficient to
support a conviction for felon in possession of a firearm.
During a search of
Arnold’s rural premises for a stolen ATV, sheriff’s deputies found
the barrel, including the chamber and bolt, of a .22 rifle.
The front and rear stocks were missing; there was no firing
mechanism or action portion of the receiver. Arnold was
convicted of VC10851, PC496, and PC12021. He appealed Count 3,
claiming there was insufficient evidence that he possessed a
firearm.
The 3rd
DCA affirmed. PC12001(b) defines “firearm” as “a weapon, from
which is expelled through a barrel a projectile by the force of any
explosion or other form of combustion.” PC12001(c) adds: “the
term ‘firearm’ includes the frame or receiver of the weapon.”
(Italics added.) “A receiver is ‘the metal frame in which the
action of a firearm if fitted and to and to which the breech end of
the barrel is attached.” The court then cited earlier cases
which held “‘Includes’ is ‘ordinarily a term of enlargement rather
than limitation.’” Under the principle of statutory
construction, subdivision (c) enlarges, rather than limits,
the definition of “firearm” in subdivision (b). This means,
for the purposes of 12021, possession of a “frame or receiver” is
sufficient to constitute possession of a firearm, regardless of
whether a “device” with a “barrel” is also possessed. Thus,
12001(c) does not
mean for the purposes of 12021, the “device” described in (b)
must include a “frame or receiver” as well as a barrel.
Although possession of a receiver is sufficient, it is not necessary
for conviction.
CONTROLLED
SUBSTANCES – Firearms Enhancement
Handguns seized during search of “stash house” support conviction
for possession of firearms in furtherance of drug trafficking.
Police arrived
after Mosley was in a car accident. He appeared to be UI
drugs. He admitted ownership of a plastic lid found under his
car that tested positive for meth. He had $2,300 cash in his
pocket. Using the “doper stuff in doper houses” theory, police
obtained a warrant for his apartment. Inside, they found a
large amount of coke, a digital scale, packaging material, $7K in
cash. A loaded 9mm Glock and a loaded .45 were found in a backpack
in the front closet. (Nah, he didn’t take that when he went
out on deliveries.) On a shelf near the front door was a
loaded .22 semi-auto with the hammer cocked. There was
no bed and little furniture, leading police to conclude the place
was used for manufacturing crack. He was convicted of
possession for sale and possession for firearms in furtherance of
drug trafficking. He appealed the second count, claiming the
handguns were for sport and/or legitimate self-protection and not
connected to his dope business.
The 9th
Circuit affirmed (even they wouldn’t buy that story!).
Where there is a sufficient nexus between the firearm and the
underlying crime, a conviction will stand. The required nexus
is determined by proximity, accessibility, and strategic location of
the firearm in relation to the drug activity. In federal court
the prosecutor must also prove the firearm was possesses to advance
or promote the drug activity. Evidence in Mosley’s apartment
made it clear the space was the base of his dope operation.
The cocked pistol was indicative of being ready for immediate use.
A firearms expert testified on the importance of firearms being
stored next to the apartment’s entrance, where an intruder looking
to steal drugs or money (or some cop!) could be easily
stopped. The evidence easily supported the conviction.
COMMENT: Here’s my annual caveat about 9th Circuit
cases. Ninth Circuit cases have no binding authority in state
court. They may, however, be considered for persuasive
authority. We can still learn from some of the situations
presented therein. Unless otherwise stated, I only cover ones
where a similar ruling based on the facts would be expected in state
court.
SHORT BRIEFS
(my way to get decisions out to you when they’re
coming out faster than I can do a full brief on them all)
Breslin v. City of
San Francisco, 1st DCA, 07 D.A.R. 720
Disciplinary
charges against police officer must be filed within one-year period,
except where tolled by statute.
Disciplinary
charges against a police officer must be filed within one year,
except for mandatory tolling while a criminal investigation is
pending and during the pendency of a civil action. No delay
beyond those dates is warranted.
Glatman v. Valverde,
5th DCA, 07 D.A.R. 528
Vehicle Code
section authorizing automatic release of impounded vehicle to rental
car company but not private individuals is not unconstitutional.
Because rental car
companies (the cars’ legal owners), were forced to bear high impound
charges for cars impounded as a result of renters’ actions before
the cars could be reclaimed, the Legislature had a rational basis to
treat rental car companies differently than private owners.
Hence, VC14602.6 was created to address the uncertainties faced by
such companies.
Samples v. Brown,
4th DCA, 07 D.A.R. 499
One-week lapse
between DUI arrest and certification of driver’s blood test results
is too long to satisfy public records hearsay exception.
To be admissible
under the public records exception to the hearsay rule, a record
must be prepared “at or near” the time of the event it purports to
record. A seven-day gap between a test and its certification
is too long to meet that standard.
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Allowing the
affiant officer to retain a portion of the original sealed affidavit
violated defendant’s due process rights.
A detective
obtained a warrant for Galland’s residence, person, and vehicle.
The affidavit contained a request to seal the warrant and portions
of the affidavit pursuant to People v. Hobbs, to protect the
identity of a CI. The sealed portion of the affidavit was to be
secured at the police department. Consequently, the portion filed
with the court did not establish probable cause for the warrant.
Sometime later, for reasons not disclosed in the record, the court
ordered the documents at the courthouse to be unsealed and provided
to the defense. Galland filed suppression motions on several
grounds that were all denied. He pled guilty and appealed.
The 4th
DCA reversed and remanded. Evidence Code 1041 allows the
prosecution to request sealing of all or a portion of a warrant
affidavit to protect the identity of a CI. EvC1042 established
guidelines for in camera review of the sealed documents when
necessary. However, the right to due process precludes a law
enforcement agency from keeping court documents in an effort to
maintain custody of documents relating to the identity of a CI. A
defendant’s right to appeal is impinged by the lack of a complete
appellate record. Even if sealing was justified, it was improper
for the police to ask or the court to grant storage of the court
documents in a police facility. Windham’s motion to withdraw his
guilty plea was granted.
SEARCH
& SEIZURE – Patdowns
A patdown search
for identification is unconstitutional.
Garcia was stopped
for riding a bike after dark without a light. When he told the
officer he had no ID, the officer conducted a patdown of Garcia’s
pants looking for ID. He felt a bulge, and retrieved drugs from
Garcia’s pocket. Garcia’s suppression motion was denied. At trial,
the prosecutor justified the seizure as a “patdown for
identification.” Garcia was convicted and appealed.
The 2nd
DCA reversed. Terry v. Ohio permits an officer to conduct a
patdown search if he has articulable reasonable suspicion to believe
the person is armed and presently dangerous. The sole purpose for
this exception to the warrant requirement is for the protection of
the officer and others nearby. Here, there was no evidence the
officer believed Garcia was armed or dangerous. The only reason for
the search was for ID, not weapons, thus exceeding the scope of a
legal Terry patdown. Because the officer lacked probable
cause to search Garcia, the suppression motion should have been
granted.
COMMENT: Note the difference between this case and an
earlier appellate decision where the suspect denied having any ID
but the officer could see the outline of a wallet (a place often
used to hold ID) in the guy’s pants, which justified the officer
telling the mope to look in the wallet.
SEARCH &
SEIZURE – Community Caretaker Exception
Conviction for carrying a loaded handgun is reversed where
prosecution failed to establish the reasonableness of seizure and
search of defendant’s car.
An officer saw
Williams driving without a seatbelt. He made a u-turn and turned on
his emergency lights. Williams pulled over and parked the car in
front of his house. He showed the officer a valid CDL but had no
registration or proof of insurance. The officer recognized Williams
as someone he had stopped previously. When he ran him, he learned
Williams had an open arrest warrant. The car was validly registered
to a rental company, not reported stolen, and legally parked. The
officer arrested Williams on the warrant and impounded the car under
VC22651(h)(1), “driver being arrested.” An inventory search of the
car prior to the impound turned up a loaded handgun in the
backseat. Williams’ suppression motion was denied and he appealed
his conviction.
The 2nd
DCA reversed. Because the Fourth Amendment protects people from
“unreasonable government intrusions into their legitimate
expectations of privacy,” there is a presumption that all
warrantless searches are illegal. The burden is on the prosecution
that such searches fall within one of the recognized warrant
exceptions. In this case, the prosecution was unable to prove that
removing the car from the street served a community caretaker
function. The car was legally parked in front of Williams’ house
and did not create a hazard or obstruct other traffic. He had a
valid driver’s license and the car was legally registered. Failing
to prove the reasonableness of the seizure, the subsequent inventory
search was unconstitutional.
BURGLARY
A rented hotel or
motel room is an inhabited dwelling for purposes of residential
burglary.
Miller rented a
motel room, expecting to have sex with Jeanette. While he awaited
her arrival, he was using some meth, when his cell phone rang. It
was Bernadette, an acquaintance, who wanted to drop by and “smoke a
bowl” with him. Even in the fog of his meth high, Miller knew it
wouldn’t look good to Jeanette if she showed up with Bernadette
there. What to do? He set up a three-way conference call and
obtained Jeanette’s OK to do meth with Bernadette. (What a gal!)
About five minutes after Bernadette arrived, there was a knock on
the door. Miller looked out and saw two men, whom he didn’t want to
admit. Bernadette told him not to worry, it was just her boyfriend,
Villalobos. She opened the door, whereupon two knife-wielding men
came in and robbed Miller of his meth, his pipe, several hundred
dollars, and his car. Villalobos and Bernadette were both charged
with first-degree burglary, first-degree robbery, carjacking, false
imprisonment, and 10851. They appealed their convictions claiming
the motel room, if rented for only one night, was not an “inhabited
dwelling.”
The 4th
DCA affirmed. PC460 says burglary of an inhabited dwelling is
burglary of the first degree. An inhabited dwelling is usually the
place where people ordinarily reside, but it doesn’t have to be. If
the victim was using the place as a habitation at the time of the
459, his plan to eventually leave the temporary abode does not
change its character as an inhabited dwelling. Thus, regardless of
the time a person stays, a hotel or motel room is an inhabited
dwelling for the purpose of first-degree burglary. Even though a
motel room may be used in a manner that does not constitute a
temporary dwelling, Miller did intend to stay overnight and sleep
there.
SHORT BRIEFS
(my way to get decisions out to you when they’re
being published faster than I can do a full brief on them all)
U.S. v. Ramirez,
9th Circuit, 07 D.A.R. 7687
Collective
knowledge doctrine does not require facts constituting probable
cause to be communicated to an officer who is asked to make a
warrantless stop, search, or arrest.
As long as the officer possessing the facts constituting
probable cause communicates an appropriate order to another officer,
it is not required the responding officer know all the facts.
January 4, 2007
NEW LAWS FOR 2007
Accompanying this edition of the Legal Update is the annual
summary of new laws for the New Year. If you don’t get the
Update electronically, be sure to check the bulletin board,
briefing book, or check with your Training Coordinator. As usual,
this is not a compendium of all the laws passed by our legislators
last year, but a synopsis of the laws you are likely to encounter on
the job or may find interesting. This synopsis has once again been
gratefully adopted – with permission and few alterations – from the
summary prepared by DDA Bob Phillips.
FIREARMS
ENHANCEMENT
Defendant who aims gun and pulls trigger has “discharged” a
firearm for purposes of PC12022.53(c) allegation.
During a carjacking, Grandy pointed a firearm at the victim
who recognized it as a semi-automatic pistol. He also saw the
ejection port was closed. About ten minutes later, having been
alerted to the crime, deputies approached the Cadillac when it got
trapped at a red light. Grandy raised the pistol and pointed it
over his shoulder. Deputies did not see a muzzle flash or hear a
discharge. Grandy survived a gunshot wound to his head. A firearms
examiner recovered the pistol. The safety was off, it contained
four live rounds, a ruptured casing was stuck in the ejection port,
and a bullet was lodged in the barrel. The expert opined that the
gun malfunctioned when the cartridge entered the chamber, causing an
explosion that tore open the case but failed to push the bullet out
the barrel. There was evidence of rounds hitting and entering the
Caddy, but none that any left the car. Grandy was found guilty of
all counts and allegations, including “3-Strikes,” for a total of
184 years to life. Among several grounds of his appeal, he claimed
there was insufficient evidence to support the 20-year PC12022.53(c)
enhancement.
The 2nd DCA affirmed. PC12022.53(c)
provides an enhancement for anyone who “discharges” a firearm in the
commission of various crimes. It is well established that the
phrase “used a firearm,” as found in PC12022.53(b), includes the
display of an unloaded or inoperable firearm. The issue then is
“the boundary between the mere use of a firearm under
subdivision (b) and the discharge of a firearm under subdivision
(c).” The court drew on the reasoning in the 2005 case of People
v. Palmer, in which a crook fired a round at an officer who
broke his ankle while diving for cover. Palmer was found guilty of
having discharged a firearm that resulted in great bodily injury, in
violation of 12022.53(d). Because no distinction can be drawn
between an evasion-based injury by one who aims a firearm, pulls the
trigger, and propels a bullet and one who causes an evasion-based
injury by aiming a firearm, pulling the trigger, but whose gun
noisily misfires, it is logical to conclude that one who aims a
firearm and pulls the trigger, causing a explosion in the firing
chamber, has discharged a firearm in violation of subsection (c).
MIRANDA
Officer’s questioning after defendant’s ambiguous attempt at
invoking his right to remain silent did not violate defendant’s
rights.
Anderson and Clark were friends until their mutual female
acquaintance reported her car stolen. She told Anderson that Clark
had a habit of borrowing cars, duplicating the keys, and stealing
them later. When Clark turned up with four gunshots to the head,
police gathered enough physical and witness evidence to determine
Anderson had ended the friendship. Anderson was picked up for
having drugs in violation of his parole and brought in for
questioning. At one point during the three and a half hour
interview, a detective told Anderson he had a good reason for
killing Clark. Anderson replied, “You know what, I don’t even wanna
talk about this no more. We can talk about it later…” Later,
during questioning about the kind of pipe Anderson used to inhale
his meth, Anderson said, “I plead the fifth.” The detective
responded, “Plead the fifth? What’s that?” To that, Anderson
accused the police of being wrong and of lying to him. He later
confessed. After the state appellate court affirmed his conviction,
Anderson brought a writ of habeas corpus in federal court. Among
other things, he claimed his admissions were coerced because the
police took advantage of his mental condition brought on by chronic
drug use, had not honored his request for an attorney during
questioning, and continued questioning after he invoked his right to
silence.
The 9th Circuit affirmed the district
court’s denial of his writ. The court said the record did not
support a finding of an involuntary confession. A previous decision
holds that heroin withdrawal and physical discomfort are not enough
to establish involuntariness of a confession (also known as the
“Hey, it’s not our fault you’re a junkie” precedent). When
Anderson did ask for an attorney as one point, the officers
turned off the recorder and stopped questioning. Anderson
reinitiated the conversation on his own volition. Finally, when
officers are faced with an ambiguous request to remain silent (e.g.
did he want to stop talking about the drug charge, the murder, or
both?), they are permitted to ask a clarifying question. Anderson
did not express a desire to remain silent in response to the
clarifying question. Hence, his constitutional rights were not
violated.
SEARCH &
SEIZURE – Exigent Cicumstances
Opening screen door infringed on occupant’s reasonable and
legitimate expectation of privacy, but exigent circumstances in this
case justified warrantless entry.
Police caught an
illegal alien driving a car with $15,000 cash. The alien claimed he
was hired to deliver the car to a woman who was supposed to “do
something” with it, then return it to the R/O, who he said was also
an illegal alien. A Border Patrol agent went to the R/O’s address
to conduct a “knock and talk.” Believing drugs were involved, he
took two narcotic officers with him. As the trio, all in
plainclothes, approached the trailer, they saw a woman on the front
steps watching children in the yard. They identified themselves and
asked if anyone else was there. She called into the house for
“Daniel.” The screen door to the trailer was closed, but the solid
door behind it was open. Officers noticed there was little or no
furniture inside. As the BP agent went to knock, a man came toward
the door, but instead of talking to the officers, swung the solid
door almost closed, ducked out of sight, and shut the blinds. The
BP agent immediately opened the screen door, pushed open the
partially closed solid door, and started in. One of the narcs saw a
.45 on the floor next to the doorjamb and yelled “gun.” The man
made a move for the gun, but was quickly subdued and handcuffed. A
security sweep of the trailer revealed evidence of drug dealing. A
subsequent search warrant found cocaine, meth, a sawed-off rifle,
and $1,000 in small bills. Among other grounds, Ochoa claimed the
denial of is suppression motion was error.
The 9th
Circuit affirmed. Police cannot violate a person’s expectation of
privacy in their home without a warrant or consent, unless one of
the exceptions to the warrant requirement applies. In the summer,
when people leave their solid door open for ventilation, the screen
door is all that separates the inside from the outside. In such
condition, opening the screen door violates a reasonable and
legitimate expectation of privacy. Arellano correctly argued the
officer would not have seen the gun but for illegally opening the
door. However, Arellano’s furtive movements of quickly dodging
behind the door and closing the blinds, coupled with the previous
information possessed by the police, created a safety concern for
the officers and the woman and children in the yard. This exigency
justified the opening of the screen door.
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