|
 |
Table Of Contents Chapter 1: The Fourth Amendment, United States Constitution: The Fourth Amendment: California Constitution, Art I, § 13 California's Exclusionary Rule Scope; The Fourth Amendment: The Fourteenth Amendment 'Due Process' The Exclusionary Rule: History The Primary Purpose of the Exclusionary Rule Rule of Exclusion: Verbal Evidence Illegal Detention Fruit of the Poisonous Tree Exceptions Expectation of Privacy Juvenile Cases On Appeal Case Authority: The Courts' Order of Priority Decisions from the United States Supreme Court: Decisions from lower Federal Courts: State Court Interpretation taking Precedence Opinions of the California Attorney General Writ of Habeas Corpus The Outline: Police-Citizen Contacts Other Topics Chapter 2: Consensual Encounters: General Rule Test Limitations No Detention Consensual Encounters vs. Detentions Specific Issues Contacts on Buses Flight Photographing Subjects Knock and Talks Chapter 3: Detentions: General Rule Test Detentions vs. Arrests General Rule Indicators of an Arrest: The Use of Firearms The Use of Handcuffs A Locked Patrol Car Show of Force Physical Touching Transporting a Detainee Exceptions: In General Examples Case Law Non-Consensual Transportation Exceptions Reasonable Suspicion Defined Articulable Objective Suspicion A Hunch The Totality of the Circumstances The Officer's Subjective Conclusions A Seizure Probable Cause vs. Reasonable Suspicion Various Factors In General A 'High Crime' or 'High Narcotics' Area Types of Detentions: Traffic Stops: Detention vs. Arrest No Law Enforcement Involvement Moving Violations Vehicle Code Equipment Violations Weaving Within the Lane Gang-Related Investigations To Identify a Suspect in a Criminal Offense Mistake of Law vs. Mistake of Fact Pretext Stops Motor Vehicle Passengers: To Arrest a Passenger To Detain a Passenger Ordering Out Ordering In Flight Search Incident to Citation Detention of Residents During the Execution of a Search Warrant Prolonged Detentions Enlarging the Scope of the Original Detention Taking Fingerprints Driving Under the Influence Cases: Weaving DUI (and Other Regulatory “Special Needs”) Checkpints Other Regulatory Checkpoints Dual Purpose Checkpoints Multiple Agency Checkpoints Drug Interdiction Checkpoints A Field Interview During Execution of a Search or Arrest Warrant, or Fourth Waiver Search Pending the Obtaining of a Search Warrant Anonymous Information Rule: Pat Down for Weapons Contraband in a Vehicle Specific Physical Description Further Examples Looking for Exceptions Corroboration Rule Examples In a Prison or Jail Minors School Officials A School Resource Officer Minors Violating Curfew Miranda Use of Force Factors Refusal to Submit Use of Firearms, Handcuffs, Locked Patrol Car, or a Show of Force Detentions in a Residence During the Execution of a Search Warrant Deadly Force Demanding Identification Detentions of Employees in the Workplace (or Students at School) Seizure of Firearms During a Detention Detention Examples, in General Merchants, Library Employees and Theater Owners Chapter 4: Arrests: Defined Standard of Proof; Probable Cause: Defined When Probable Cause Exists The Collective Knowledge Doctrine Miscellaneous Rules Examples Test Unlawful Arrest Elements of an Arrest Use of Force: Reasonable Force Factors Examples Applicable Statutes Use of Deadly Force: Causing Death Deadly Force Defined Non-Criminal Homicides Applicable Statutes Limitations: 'Forcible and Atrocious' Crime History The Fourth Amendment Forcible and Atrocious Crime, Defined Burglary of a Residence Self-Defense Fleeing Felon Transferred Intent Use of Deadly Force by Police Officers Legal Authority for Arrests: Arrests by a Peace Officer Arrests by a Private Person Out of State Officers in Fresh Pursuit Federal Officers Bounty Hunters Arrest Options Release Without Charges Seek an Arrest Warrant Issuance of a Misdemeanor Citation Booking into Jail Take the Subject Directly Before a Magistrate Legal Requirements of an Arrest: Felonies Misdemeanors and Infractions: 'In the Presence' Requirement: 'In the Presence,' Defined Exceptions Juvenile Arrests Driving While Under the Influence Arrests Battery on School Grounds Carrying a Loaded Firearm Assault or Battery Against the Person of a Firefighter, Emergency Medical Technician, or Paramedic Domestic Violence Restraining Orders Domestic Violence Assaults or Batteries Elder Abuse Carrying a Concealed Firearm at an Airport Operating a Vessel or Recreational Vessel or Manipulation of Water Skis, Aquaplane or Similar Device While Under the Influence Operating a Vessel While Under the Influence of Alcohol and/or Drugs with an Accident Vehicle Code Violations, Exceptions Vehicle Code Parking Citations Stale Misdemeanor Rule Sanctions for Violations Arrests for an Infraction or Misdemeanor: Release Requirement Exceptions V.C. § 40302 Other Satisfactory Evidence of His Identity Arrestable Offenses The Unlicensed Driver Non-Residents Traffic Arrest Bail Bond Certificate Misdemeanor Citations With an Existing Warrant of Arrest Arrest Warrants: Defined Content Other Types of Arrest Warrants: Bench Warrant Telephonic Arrest Warrant Ramey Warrant A 'DNA, John Doe' Warrant Necessity of an Arrest Warrant Service and Return: Felony arrest warrants Misdemeanor Arrest Warrants Night Service Necessity for Having a Copy of The Arrest Warrant Knock and Notice Procedure After Arrest: Disposition of Prisoner In-County Arrest Warrants Out-of-County Arrest Warrants Necessity of Having Probable Cause The Steagald Warrant Extensions Statute of Limitations Statutory Limitations: Daytime and Nighttime Arrests: Felony Arrests Without an Arrest Warrant With an Arrest Warrant Misdemeanor (and Infraction) Arrests: Without an Arrest Warrant With an Arrest Warrant Penal Code § 964: Victim and Witness Confidential Information Live Lineups Case Law Limitations: Ramey: General Rule Exceptions Consent Exigent circumstances Already Lawfully Inside Standing in the Threshold While Serving a Search Warrant A Parolee Inviting Defendant Outside Sufficiency of Evidence that the Suspect is Inside Within a Third Person’s Home Consequences of a Ramey/Payton Violations Knock and Notice Problems: Arresting for the Wrong Offense Mistaken Belief in Existence of an Arrest Warrant or Fourth Waiver: Problem Rule Good Faith Non-Law Enforcement Sources: Court Source Legislative Source Department of Motor Vehicles Source Law Enforcement Source Others: Parole The Probation Department Arresting and Searching in Ignorance of an Existing Warrant of Arrest Minors and Curfew Minors and Truancy Information Provided to an Arrested Person: P.C. § 841; Information to be Provided Foreign Nationals Advisal to Arrestee/Detainee Automatic Notice to Foreign Country Sanctions for Violations P.C. § 834b Miranda Follow-Up Requirements After Arrest: Other Rights of the Arrestee: Right to Access to an Attorney Right to Access to a Physician or Psychiatrist Right to Telephone Calls: Minors Other Statutory Obligations of the Arresting Officer Civil Liability Chapter 5: Searches: Things Subject to Search and Seizure General Rule Probable Cause Presumptions Remedy for Violations; The Exclusionary Rule The Fourth Amendment The Fruit of the Poisonous Tree Exceptions: Private Persons The Good Faith Exception The Taint has been Attenuated Statutory Only Violations Doctrine of Inevitable Discovery An Injured Person Evidence of identity Impeachment Evidence Standing: Defined Reasonable Expectation of Privacy Test Prior California Rule Rules for Determining Standing: Burden of Proof Factors to Consider On Appeal Standing; Examples: Vehicles Visitors Personal Property Outside Common Areas Businesses Renters with a Stolen Credit Card Exposure to Public View Disclaiming Standing Reasonableness Old Rule New Rule Whren v. United States Limitations on Whren Racial Profiling Fourth Amendment vs. Fifth Amendment Issues Posse Comitatus; Use of the Military by Civilian Law Enforcement: The Act Purpose Case Law Sanctions for Violations Chapter 6: Searches with a Search Warrant: Search Warrant Defined Preference for Search Warrants Why Search Warrants are Preferred Presumption of Lawfulness with a Warrant Motion to Quash Motion to Traverse Benefit of the Doubt Presumption of Unlawfulness Without a Warrant Good Faith The Exclusionary Rule Exceptions to Good Faith Rule Magistrate Misled Magistrate Abandoned Judicial Role Lack of Indicia of Probable Cause Warrant Deficient Affidavit Based on Illegally Collected Information Wiretap Statutes Violation Exigent Circumstances Examples Ramey Inapplicable Consensual Searches Informants Acting in the Performance of His Duties Non-Standard Types of Warrants: Telephonic Search Warrants Anticipatory Search Warrants Sneak and Peek Warrants AIDS Testing Records of Foreign Corporations Providing Electronic Communications or Remote Computing Services, per P.C. § 1524.2 Records of Foreign Corporations Providing Electronic Communications or Remote Computing Services in Misdemeanor cases, per P.C. § 1524.3 Requirement of a “Neutral and Detached” Magistrate: Rule Violations Composition of a Search Warrant The Warrant Itself Contents Statutory Grounds for Issuance The Affidavit to the Search Warrant Defined Probable Cause Minimum Contents The “Reasonable Particularity” Requirement The Persons, Places, Things and Vehicles to be Searched The Property to be Seized Inadvertent Changes to the Language of a Warrant and Affidavit General Warrants Supplementation to the Affidavit Combined Affidavit with Warrant Multiple Affidavits Staleness Fingerprints Description of the Facts Good Faith Use of Hearsay Miranda Fourth Amendment Violations Privileged Information Nighttime Searches Leaving a Copy at the Scene Victim and Witness Confidential Information The Receipt and Inventory Sources of Information Establishing Probable Cause: Other Police Officers Citizen Informants Reliable (“Tested”) Informants Unreliable (“Untested”) Informants Anonymous Informants Confidential Informants: Problem Rule Restrictions Revealing an Informant’s Identity Luttenberger Motions An Informant Sworn Before A Magistrate; A Skelton Warrant Probable Cause Issues: Anonymous Information The Cleland Warrant Trashcan Searches Computer Searches Use of a Search Warrant: Rule Exceptions Exigent Circumstances Consent Inevitable Discovery Searches of Vehicles Searches of Persons with Probable Cause Searches Incident to Arrest Administrative/Regulatory Searches Crime Scene Searches Bank Records Customer Authorization Administrative Subpoena or Summons Search Warrant Judicial Subpoena or Subpoena Duces Tecum Police Request Victimized Financial Institution Credit Card Information Telephone Records: Unlisted Numbers Telephone Calls Made Certification for Non-Disclosure Pen Registers and Trap and Trace P.C. § 1524.2: Out-of-State Electronic Communications Information P.C. § 1524.3: Out-of-State Electronic Communications Information in Misdemeanor Cases Wiretaps and Eavesdropping Federal Omnibus Crime Control and Safe Streets Act of 1968 vs. P.C. §§ 629.50 et seq. Statement of Legislative Purpose Prisoner Telephone Conversations Wiretapping Prohibitions Punishment Exceptions Prisoner Visitors Non-Admissibility Similar Restrictions A “Controlled Phone Call” P.C. §§ 629.50 et seq., Wiretaps Requirements/Application for a Wiretap Order Definitions Wire Communication Electronic Pager Communication Electronic Cellular Telephone Communication Aural Transfer Authority to Issue a Wiretap Order Judicial Guidelines Contents of the Wiretap Order Oral Approval in Lieu of Court Order Duration of a Wiretap Order Progress Report Report to Attorney General Annual Report to the Legislature Recording, Sealing and Retaining Intercepted Communications Application and Orders to be Sealed Notice to Parities to Intercepted Communications Discovery Prerequisites to Use in Evidence Motions to Suppress Disclosure to Other Law Enforcement Agencies Use of Intercepted Information Disclosure of Intercepted Information in Testimony Privileged Communications Interception of Communications Relating to Crimes Other Than Those Specified in the Authorization Order Violent Felonies Other Than Violent Felonies Right to Notice and Copy The “Plain View” Doctrine Criminal Punishment for Violations Civil Remedies for Unauthorized Interceptions Effects of Other Statutes Covert Residential Entries Order for Cooperation of Public Utilities, Landlords, Custodians and Others Civil or Criminal Liability; Reliance Upon Court Order Authority to Conform Proceedings and Order to Constitutional Requirements Training and Certification of Law Enforcement Officers Severability Automatic Repeal Eavesdropping, Compared Limitations on the Use of Search Warrants: Newsroom Searches Searches of Indian Tribal Property Retention of the Documents Mechanics of Preparation Service and Return: To “Any Peace Officer” Necessity to Serve Night Service Out-of-County Service Who May Serve Knock and Notice: General Rule Purpose Problem Exceptions: Businesses Inner Doors of a Residence Refusal Implied Refusal Reasonable Time Exigent Circumstances Doctrine of Substantial Compliance No-Knock Search Warrants Entry by Ruse Standing; An Absent Tenant Sanctions for Violations Not Necessarily a Fourth Amendment Violation Seizing Items not Listed in the Warrant Answering the Telephone Time Limitations One Continuous Search Leaving a Copy of the Warrant The Receipt and Inventory The Federal Rule The Ninth Circuit Court of Appeal’s Opinion Destruction of Property Sealing the Warrant Affidavit: How Accomplished When Warrants May be Sealed Criticism of Procedure Court Procedures Retention of the Documents Return of Property Extensions Special Masters: Rule When Not Applicable The “Special Master” Documentary Evidence Procedure The Court Hearing Other Service Conditions Other Warrants: Inspection Warrants Rendition (or Extradition): Art. IV, § 2, Clause 2, U.S. Constitution The Implementing Statute International Extraditions Extradition Between States: The Uniform Criminal Extradition Act Adoption in California P.C. § 1548.1 Procedure Unlawful Flight to Avoid Prosecution (“UFAP”) Scope Purpose Procedure Parental Kidnappings Avoiding Custody or Confinement Avoiding Giving Testimony Avoiding Service of Process State Extradition Dismissal of Federal Complaint Chapter 7: Warrantless Searches: General Rule Exceptions to the Search Warrant Requirement Plain Sight Observations Rule No Search Justification for Seizure No Expectation of Privacy Examples The “Plain Sight Observation” vs. the Right To Enter a Residence Plain Hearing Plain Smell Rule Examples Exceptions Exigent Circumstances Rule Examples: Destruction of Evidence Officers’ Safety Fresh or Hot Pursuit Search for Additional Suspects Protection of Life and Property To Prevent the Escape of Suspects, or When Suspects Arm Themselves Special Needs Searches Test Examples Random Testing of Student Athletes Random Metal Detector Searches of Students Search of a student’s computer Drug Testing for United States Customs Service Employees Searches of Employees’ Backpacks Pre-Departure Airport Screening Procedures Drug and Alcohol Testing for Railway Employees Administrative Inspections of Closely Regulated Administrative Inspection of Fire-Damaged Premises Administrative Housing Code Inspections Border Patrol Checkpoints Sobriety Checkpoints Entry into a Residence to Enforce a Court Order Fourth Waiver Searches A Search Warrant Issued Pursuant to P.C. § 1524.1 (HIV) Taking of Biological Samples for DNA Databases Exceptions to Exceptions A Highway Drug Interdiction Checkpoint A State Hospital Blood Testing Program Closely Regulated Businesses or Activities: Pervasively or Closely Regulated Businesses Other California or United States Regulatory/Administrative Searches: Vehicle Code Penal Code Fish and Game Code Financial Code United States Code School Searches Airport Searches Evidence of a Refusal to Consent to a Warrantless Search Chapter 8: Searches of Persons: Privacy Rights Rule Search Incident to Arrest Legal Justification Transportation Requirement: Anyone Who is Arrested and is to be Transported Transporting a Minor Contemporaneous In Time and Place Other Requirements and Limitations: Search Incident to a Citation Searches of Containers Property of Booked Person Arrest in the Home Arrest in a Vehicle Strip Search Searches with Probable Cause The Exigency Probable Cause from the Defendant’s Admissions P.C. § 833; Search of an Arrestee Order of Search & Arrest Intrusions Into the Human Body Shock the Conscience Interest of Human Dignity and Privacy Factors Driving Under the Influence Cases Other Examples of Bodily Intrusions Choking Rule Examples Searches with Less Than Probable Cause Government Employees Drug Testing of Persons in Pervasively Regulated Industries or Sensitive Positions Railway Workers Customs Officers Candidates for Public Office A State Hospital’s Drug Testing Policy for Expectant Mothers For Students: Drug Testing: Athletics and Extracurricular Activities Students in General Frisks (or Pat Down) Defined For Weapons Only Reasonable or Rational Suspicion The Nature of the Crime as a Factor Procedures: Limited to Outer Clothing Removal of Weapons When Suspect Reaching for a Weapon P.C. § 833.5; Detentions Problems: During Consensual Encounter During Execution of a Search Warrant Feeling a Controlled Substance Frisk Based Upon Uncorroborated Anonymous Tip Other Situations Abandoned Property: General Rule The “Threatened Illegal Detention” Searching for Identification Fingerprint Evidence Handwriting (and Other Types of) Exemplars Prisoner Searches: Inventory Searches Search Incident to Arrest Institutional Needs Other Purposes Booking (and Inventory) Searches Containers Impounded Property Strip Searches of Prisoners Misdemeanor Booking Searches: Due Process Restrictions For Pre-Arraignment Detainees Arrested for Infractions and Misdemeanor Offenses Definitions Pat Down, Metal Detector and Clothing Search Limitations on “strip search” or “visual body cavity search” Search Warrant Requirement Touching Prohibited Physical Body Cavity Searches Sex of Searchers Location of Searches Penalties for Violations Civil Remedies for Violations Case Law Jail Cells Monitoring of Jail Visitations and Telephone Calls: Rule Exceptions Monitoring Jail Mail Regulating Jail/Prison Visitations Retained Constitutional Rights: Infringement on Rights Rights Retained by Prison Inmates DNA Profiling of Prisoners The DNA and Forensic Identification Database and Data Bank Act of 1998 Statement of Intent Purpose Identification of Criminal Offenders Biological Samples Limited to “Buccal” Collection of Blood Samples DNA and Forensic Identification Database and Data Bank Program Counties’ Responsibilities Costs DNA Testing Fund The “Jan Bashinski DNA Laboratory.” NeOffenders Subject to Collection of Specimens, Samples and Print Impressions Applies to All Qualified Persons Regardless of Sentence Applies to All Qualified Persons Regadless of Placement Provisions are Mandatory Duty of a Prosecutor to Notify the Court Duty of a Court to Inquire Collection of Samples For Present and Past Qualifying Offenses Retroactivity of Provisions Procedures for Obtaining Replacement Analysis of Crime Scene Samples Procedures for Collection of Samples Sanctions for Failure to Provide Required Samples Use of Force “Reasonable Force,” Defined Written Authorization to Use Force Efforts to Secure Voluntary Compliance Videotaping of “Cell Extractions” Blood Withdrawals in a Medically Approved Manner Expungement of Data Confidentiality Requirements Dissemination of Information to Law Enforcement Agencies Disposal of Samples Construction and Severability Case Law Chapter 9: Searches of Vehicles: General Rule: The “Automobile Exception” to the Warrant Requirement Justification for the Rule Warrantless Searches of Vehicles Incident to Arrest The Rationale Containers Probable Cause Not Needed Limitations: The Lunging Area Contemporaneous in Time and Place Transportation Search Incident to a Citation Searches where Arrestee is a “Recent Occupant:” Search With Probable Cause General Rule Problem: Limited Amount of Contraband Problem: Vehicle Already Impounded Problem: Closed Containers Problem: Motorhomes (and Other Vehicles) Problem: Expanding the Scope of the Search Evidence of Probable Cause Vehicle is Itself Evidence Inventory Searches "Pat Down" (or "Protective Search") of a Vehicle Statutory Automobile Inspections: V.C. § 2805(a): Elements V.C. § 2805(b): Elements Time and Manner of Inspections Penalties Relevant Definitions Downloading the Contents of an “Event Data Recorder” Case Law Searching for Driver’s License and Vehicle Documentation Chapter 10: Searches of Residences and Other Buildings: Private Residence & Expectation of Privacy General Rule Other Buildings and Places: Hotel & Motel Rooms Boarding House Garage Fishing Retreat Hospital Room Jail Cell Curtilage of the Home Problem: When Officers Trespass Temporary or Impermanent Residences Businesses Workplace Searches of Government Employees: Rule Reasonableness Public Restrooms, Adult Bookstores and Dressing Rooms Pay Toilets Restroom in a Department Store Doorless Stall in a Public Restroom Curtained Booth in an Adult Bookstore Fitting Room in a Department Store Spying into Bathrooms, Etc. Securing the Premises: Fourth Amendment General Rule Limitation; Creating an Exigency With Probable Cause With No Probable Cause Securing Cases Detention of a Residence Detaining Residents Outside Knock and Talk The Doctrine of "Consent Once Removed"¯ Observing Contraband from Outside Using a Ruse to Cause a Suspect to Open his Door Searches Incident to Arrest In a Residence The Protective Sweep: Defined Limitation Arresting Outside Detentions Outside Commercial Establishment Other Situations Plain Sight Observations Preserving the Peace Preventing the Destruction of Evidence Welfare Checks Emergency Exception and Officer Safety Emergency Exception and the Odor of Ether Executing an Arrest Warrant Third Party Entries with Police Knock and Notice Chapter 11: New Law Enforcement Technology: The Problem Thermal Imaging Device A Buster Spike Mike Aerial Surveillance Electronic Tracking Devices (Transmitters) Videotaping and Photographing Metal Detectors Dogs Used to Search or Track Chapter 12: Open Fields: General Rule Observations Into Private Areas Chapter 13: Searches of Containers: General Rule Exceptions to the Warrant Requirement: Incident to Arrest Incident to Arrest, in a Vehicle With Probable Cause, in a Vehicle Abandoned Property Searches of High Tech Containers With Consent of a Third Person having Common Authority The "Single Purpose Container"¯ Theory Containers Searched by Non-Law Enforcement Customs Inspections "Manipulating,"¯ "Squeezing"¯ or "Poofing"¯ Containers At an Airport At a Bus Station During a Detention and Pat Down Detention of a Container Chapter 14: Border Searches: General Rule The statutory arrest and search authority Interdiction Authority Routine vs. Non-Routine Searches Routine Searches Non-Routine Searches Destructiveness of the Search Reasonableness of the Search The Functional Equivalent of a Border The "Extended Border Search Doctrine"¯ Immigration Checkpoints, Away from the Border Roving Patrols The San Ysidro Port of Entry Chapter 15: Fourth Waiver Searches: "Prior Consents:"¯ Search & Seizure (Fourth Waiver) Conditions: General Rule Parole Probation Parole vs. Probation A "Special Needs Search"¯ Juvenile Probationers Pre-Trial Constitutionality Expectation of Privacy Standard of Proof Required: Probation Parole Limitation: Searches Conducted for Purposes of Harassment Who May Conduct a Fourth Waiver Search? California Rule Need to Seek Permission: Probation Parole Searching While In Ignorance of a Search Condition Issue Earlier Case Law Present State of the Rule Other Issues Arresting and Searching in Ignorance of an Existing Warrant of Arrest Parole Hearings Duration of a Fourth Wavier Good Faith Belief in the Existence of a Search Condition Rights of Third Parties: Common Areas Private Areas Knock and Notice Detentions, Pat Downs and Arrests: Detentions Pat Downs Arrests Out-of-State Probationer or Parolee AIDS and HIV Chapter 16: Consent Searches: Rule Limitation; Free and Voluntary Requirement Burden of Proof Factors Circumstances Affecting Voluntariness: Under Arrest Use of Firearms Threatening to Obtain a Warrant Threatening to Use a Drug-Sniffing Dog Implying Guilt Using a Ruse Threats to Take Away One's Children Other Inducements Combination of Factors During a Consensual Encounter Manner of Inquiry Product of a Constitutional Violation Illegal Entry or Arrest Illegal Search Illegal Interrogation Sixth Amendment Violation The Scope of the Consent Burden of Proof Test Express vs. Implied Consent Issues: Withdrawal of Consent Limiting the Consent Use of a Drug-Sniffing Dog Placing Conditions on the Consent Use of a Ruse or Deception Suspect Under Arrest Giving Consent Consent to Search a Residence with No Suspicion Other Elements of a Consent Search: The Right to Refuse Miranda Written Consent Consent During a Prolonged Detention: General Rule After Detention Ended Answering the Telephone Sanctions for Violations Consent by Others: General Rule Examples: Landlord Parent Child Co-Occupant (Husband and Wife)
|
|
|
|
