SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and Search by abstraks

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									                  SAN DIEGO DISTRICT ATTORNEY



                              The Fourth Amendment and
                                   Search & Seizure

                                                   An Update
                                                  Seventh Edition
                                                    January, 2007



                                                          Robert C. Phillips
                                                          Deputy District Attorney
                                                          Law Enforcement Liaison Deputy
                                                          (858) 974-2421 (W)
                                                          (858) 395-0302 (C)
                                                          Robert.Phillips@SDSheriff.org
                                                          RCPhill808@aol.com




                                                          i
© 2007 Robert C. Phillips. All rights reserved.
© 2007 by Robert C. Phillips

All rights reserved. No part of this Outline may be reproduced or transmitted in any form
or by any means, electronic or mechanical, including photocopying and recording, or
through any information storage or retrieval system, when done for commercial purposes
or for any form of a monetary return or profit, except as expressly permitted by federal
copyright law and as indicated below.

This Outline has been prepared and published for the purpose of aiding law enforcement
officers, police and private investigators, law enforcement administrators, prosecutors,
the judiciary, other attorneys engaged in the practice of criminal law, students, and legal
educators and scholars, in accessing, using and understanding the field of Fourth
Amendment Search and Seizure Law. As such, permission is expressly granted by the
author to the above listed persons, or any other person, to use, reproduce, cite, and/or
employ in the field of law enforcement, education or instruction any or all of this Outline,
provided the source is properly and correctly identified.

The information provided in this Outline is a summary of various aspects of Fourth
Amendment Search and Seizure Law, and in many respects represents no more than the
author’s opinions, interpretation and conclusions concerning the various topics discussed.
Readers are advised not to rely upon the information provided in this publication without
first researching and verifying the legal rules and issues intended to be used. This
Outline is not intended to be a substitute for the reader’s own professional judgment and
legal research.

Comments concerning errors, misinterpretations, and/or other suggestions for expanding
or improving the information provided in this Outline are respectfully solicited, and
should be directed to the author.

Robert C. Phillips
Deputy District Attorney
Law Enforcement Liaison Deputy
San Diego District Attorney’s Office
Robert.Phillips@sdsheriff.org
RCPhill808@aol.com
858-974-2421




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© 2007 Robert C. Phillips. All rights reserved.
Table of Contents

                                                              Page

Chapter Summary:

Chapter 1: The Fourth Amendment, United States Constitution   1

Chapter 2: Consensual Encounters                              9

Chapter 3: Detentions                                         17

Chapter 4: Arrests                                            65

Chapter 5: Searches                                           149

Chapter 6: Searches with a Search Warrant                     171

Chapter 7: Warrantless Searches                               298

Chapter 8: Searches of Persons                                315

Chapter 9: Searches of Vehicles                               374

Chapter 10: Searches of Residences and Other Buildings        395

Chapter 11: New Law Enforcement Technology                    423

Chapter 12: Open Fields                                       431

Chapter 13: Searches of Containers                            432

Chapter 14: Border Searches                                   443

Chapter 15: Fourth Waiver Searches                            452

Chapter 16: Consent Searches                                  472




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                                                                                Page

Topics:

Chapter 1: The Fourth Amendment, United States Constitution:                    1

           The Fourth Amendment:                                                1

                      California Constitution, Art I, § 13                      1

                      California’s Exclusionary Rule                            1

           Scope; The Fourth Amendment:                                         1

                      The Fourteenth Amendment “Due Process”                    1

           The Exclusionary Rule:                                               2

                      History                                                   2

                      The Primary Purpose of the Exclusionary Rule              2

                      Rule of Exclusion:                                        3

                                 Fruit of the Poisonous Tree                    3

                                 Exceptions                                     3

                      Expectation of Privacy                                    4

                      Juvenile Cases                                            5

                      On Appeal                                                 5

           Case Authority:                                                      5

                      The Courts’ Order of Priority                             5

                      Decisions from the United States Supreme Court:           5

                      Decisions from lower Federal Courts:                      6

                                 State Court Interpretation taking Precedence   6

                                 Opinions of the California Attorney General    7



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                                 Writ of Habeas Corpus     7

           The Outline:                                    8

                      Police-Citizen Contacts              8

                      Other Topics                         8

Chapter 2: Consensual Encounters:                          9

           General Rule                                    9

           Test                                            9

           Limitations                                     10

           No Detention                                    10

           Consensual Encounters vs. Detentions            13

           Specific Issues:                                13

                      Contacts on Buses                    13

                      Flight                               14

                      Photographing Subjects               15

                      Knock and Talks                      15

Chapter 3: Detentions:                                     17

           General Rule                                    17

           Test                                            17

           Detentions vs. Arrests:                         18

                      General Rule                         18

                      Indicators of an Arrest:             18

                                 The Use of Firearms       18

                                 The Use of Handcuffs      18



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                                 A Locked Patrol Car             19

                                 Show of Force                   19

                                 Physical Touching               19

                                 Transporting a Detainee         19

                      Exceptions:                                19

                                 In General                      20

                                 Examples                        20

                                 Case Law                        20

                      Non-Consensual Transportation Exceptions   22

           Reasonable Suspicion:                                 23

                      Defined                                    23

                      Articulable Objective Suspicion            24

                      A Hunch                                    24

                      The Totality of the Circumstances          25

                      The Officer’s Subjective Conclusions       25

                      A Seizure                                  25

                      Probable Cause vs. Reasonable Suspicion    25

           Various Factors:                                      25

                      In General                                 25

                      A “High Crime” or “High Narcotics” Area    26

           Types of Detentions:                                  27

                      Traffic Stops:                             27

                                 Detention vs. Arrest            27



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                                 Moving Violations                            27

                                 Vehicle Code Equipment Violations            28

                                 Weaving Within the Lane                      30

                                 Gang-Related Investigations                  30

                                 Mistake of Law vs. Mistake of Fact           31

                                 Pretext Stops                                32

                                 Motor Vehicle Passengers:                    34

                                            To Arrest a Passenger             34

                                            To Detain a Passenger             34

                                            Ordering Out                      36

                                            Ordering In                       37

                                            Flight                            38

                                 Search Incident to Citation                  39

                      Prolonged Detentions                                    40

                      Enlarging the Scope of the Original Detention           41

                      Taking Fingerprints                                     43

                      Driving Under the Influence Cases:                      44

                                 Weaving                                      44

                                 DUI (and Other Regulatory “Special Needs”)
                                       Checkpoints                            44

                                 Other Regulatory Checkpoints                 46

                                 Duel Purpose Checkpoints                     47

                                 Multiple Agency Checkpoints                  47

                                 Drug Interdiction Checkpoints                48


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                      A Field Interview                                    49

                      During Execution of a Search or Arrest Warrant, or
                             Fourth Waiver Search                          50

                      Pending the Obtaining of a Search Warrant            51

           Anonymous Information:                                          52

                      Rule:                                                52

                                 Pat Down for Weapons                      52

                                 Contraband in a Vehicle                   53

                                 Specific Physical Description             53

                                 Further Examples                          53

                                 Looking for Exceptions                    54

                      Corroboration:                                       56

                                 Rule                                      56

                                 Examples                                  57

                      In a Prison or Jail Cell                             58

                      Pending Case                                         58

           Minors:                                                         58

                      School Officials                                     58

                      A School Resource Officer                            59

                      Minors Violating Curfew                              59

           Miranda                                                         60

           Use of Force:                                                   60

                      Factors                                              60



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                      Refusal to Submit                                   60

                      Use of Firearms, Handcuffs, Locked Patrol Car, or
                             a Show of Force                              61

                      Deadly Force                                        61

           Demanding Identification                                       61

           Detention Examples, in General                                 62

           Merchants, Library Employees and Theater Owners                64

Chapter 4: Arrests:                                                       65

           Defined                                                        65

           Standard of Proof; Probable Cause:                             65

                      Defined                                             65

                      When Probable Cause Exists                          65

                      The Collective Knowledge Doctrine                   66

                      Miscellaneous Rules                                 67

                      Examples                                            68

           Test                                                           69

           Unlawful Arrest                                                69

           Elements of an Arrest                                          70

           Use of Force:                                                  70

                      Reasonable Force                                    70

                      Factors                                             71

                      Examples                                            71

                      Applicable Statutes                                 73




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                      Use of Deadly Force:                                          76

                                 Causing Death                                      76

                                 Deadly Force Defined                               76

                                 Non-Criminal Homicides                             77

                                 Applicable Statutes                                77

                                 Limitations:                                       78

                                            “Forcible and Atrocious” Crime          78

                                            History                                 78

                                            The Fourth Amendment                    79

                                            Forcible and Atrocious Crime, Defined   79

                                            Burglary of a Residence                 80

                                            Self-Defense                            81

                                            Fleeing Felon                           87

                                            Transferred Intent                      89

                                 Use of Deadly Force by Police Officers             90

           Legal Authority for Arrests:                                             91

                      Arrests by a Peace Officer                                    91

                      Arrests by a Private Person                                   92

                      Out of State Officers in Fresh Pursuit:                       94

                      Federal Officers                                              94

                      Bounty Hunters                                                96

                      Arrest Options:                                               98

                                 Release Without Charges                            98



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                                 Seek an Arrest Warrant                              99

                                 Issuance of a Misdemeanor Citation                  99

                                 Booking into Jail                                   99

                                 Take the Subject Directly Before a Magistrate       100

           Legal Requirements of an Arrest:                                          100

                      Felonies                                                       100

                      Misdemeanors and Infractions:                                  100

                                 “In the Presence” Requirement:                      100

                                            “In the Presence,” Defined               100

                                            Exceptions:                              101

                                                   Juvenile Arrests                  101

                                                   Driving While Under the
                                                          Influence Arrests          101

                                                   Battery on School Grounds         102

                                                   Carrying a Loaded Firearm         102

                                                   Assault or Battery Against the
                                                          Person of a Firefighter,
                                                          Emergency Medical
                                                          Technician or Paramedic    102

                                                   Domestic Violence Restraining
                                                         Orders                      102

                                                   Domestic Violence Assaults
                                                         or Batteries                103

                                                   Elder Abuse                       104

                                                   Carrying a Concealed Firearm
                                                          at an Airport              104




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                                                  Operating a Vessel or Recreational
                                                         Vessel or Manipulation
                                                         of Water Skis, Aquaplane
                                                         or Similar Device While
                                                         Under the Influence           104

                                                  Operating a Vessel While Under
                                                         the Influence of Alcohol
                                                         and/or Drugs with an
                                                         Accident                      104

                                 Vehicle Code Violations, Exceptions                   105

                                 Vehicle Code Parking Citations                        105

                                 Stale Misdemeanor Rule                                106

                                 Sanctions for Violations                              106

                      Arrests for an Infraction or Misdemeanor:                        108

                                 Release Requirement                                   108

                                 Exceptions                                            108

                                 V.C. § 40302                                          109

                                 Other Satisfactory Evidence of His Identity           109

                                 Arrestable Offenses                                   109

                                 The Unlicensed Driver                                 111

                                 Non-Residents                                         111

                                 Traffic Arrest Bail Bond Certificate                  111

                                 Misdemeanor Citations                                 111

                                 With an Existing Warrant of Arrest                    112

           Arrest Warrants:                                                            113

                      Defined                                                          113



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                      Content                                                      114

                      Other Types of Arrest Warrants:                              114

                                 Bench Warrant                                     114

                                 Telephonic Arrest Warrant                         114

                                 Ramey Warrant                                     114

                      Necessity of an Arrest Warrant                               115

                      Service and Return:                                          115

                                 Felony Arrest Warrants                            115

                                 Misdemeanor Arrest Warrants:                      115

                                            Night Service                          115

                                 Necessity for Having a Copy of the Arrest
                                        Warrant                                    116

                                 Procedure After Arrest:                           116

                                            Disposition of Prisoner:               116

                                                   In-County Arrest Warrants       116

                                                   Out-of-County Arrest Warrants   116

                                            Necessity of Having Probable Cause     117

                                            The Steagald Warrant                   118

                                 Extensions                                        118

                                 Statute of Limitations                            118

           Statutory Limitations:                                                  118

                      Daytime and Nighttime Arrests:                               118

                                 Felony Arrests:                                   119

                                            Without an Arrest Warrant              119


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© 2007 Robert C. Phillips. All rights reserved.
                                            With an Arrest Warrant             119

                                 Misdemeanor (and Infraction) Arrests:         119

                                            Without an Arrest Warrant          119

                                            With an Arrest Warrant             120

                      Penal Code § 964: Victim and Witness
                             Confidential Information:                         121

           Case Law Limitations:                                               121

                      Ramey:                                                   121

                                 General Rule                                  121

                                 Exceptions:                                   121

                                            Consent                            121

                                            Exigent Circumstances              123

                                            Already Lawfully Inside            126

                                            Standing in the Threshold          126

                                            While Serving a Search Warrant     127

                                            A Parolee                          127

                                            Inviting Defendant Outside         127

                                 Sufficiency of Evidence that the Suspect is
                                         Inside                                128

                                 Within a Third Person’s Home                  129

                                 Consequences of a Ramey/Payton Violations     130

           Knock and Notice                                                    132

           Problems:                                                           132

                      Arresting for the Wrong Offense                          132


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                      Mistaken Belief in Existence of an Arrest Warrant
                             or Fourth Waiver:                                    133

                                 Problem                                          133

                                 Rule                                             133

                                 Good Faith                                       134

                                 Non-Law Enforcement Sources:                     134

                                            Court Source                          134

                                            Legislative Source                    135

                                            Department of Motor Vehicles Source   135

                                 Law Enforcement Source                           136

                                 Others:                                          136

                                            Parole                                136

                                            The Probation Department              136

                      Arresting and Searching in Ignorance of an
                             Existing Warrant of Arrest                           137

                      Minors and Curfew                                           137

                      Minors and Truancy                                          138

           Information Provided to an Arrested Person:                            138

                      P.C. § 841; Information to be Provided                      138

                      Foreign Nationals:                                          139

                                 Advisal to Arrestee/Detainee                     139

                                 Automatic Notice to Foreign Country              140

                                 Sanctions for Violations                         140

                      Miranda                                                     143


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           Follow-Up Requirements After Arrest:                                   144

                      Other Rights of the Arrestee:                               144

                                 Right to Access to an Attorney                   144

                                 Right to Access to a Physician or Psychiatrist   144

                                 Right to Telephone Calls:                        145

                                            Minors                                147

                      Other Statutory Obligations of the Arresting Officer        147

           Civil Liability                                                        148

Chapter 5: Searches:                                                              149

           Things Subject to Search and Seizure                                   149

           General Rule:                                                          149

                      Probable Cause                                              149

           Presumptions                                                           149

           Remedy for Violations; The Exclusionary Rule:                          149

                      The Fourth Amendment                                        150

                      The Fruit of the Poisonous Tree                             150

                      Exceptions:                                                 151

                                 Private Persons                                  151

                                 The Good Faith Exception                         152

                                 The Taint has been Attenuated                    152

                                 Statutory Only Violations                        152

                                 Doctrine of Inevitable Discovery                 155

                                 An Injured Person                                156


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                                 Evidence of identity                156

                                 Impeachment Evidence                156

           Standing:                                                 157

                      Defined                                        157

                      Reasonable Expectation of Privacy              157

                      Test                                           158

                      Old California Rule                            158

                      Rules for Determining Standing:                159

                                 Burden of Proof                     159

                                 Factors to Consider                 159

                                 On Appeal                           160

                      Standing Examples:                             160

                                 Vehicles                            160
‘
                                 Visitors                            161

                                 Personal Property                   162

                                 Outside Common Areas                163

                                 Businesses                          163

                                 Renters with a Stolen Credit Card   164

                                 Exposure to Public View             164

                      Disclaiming Standing                           165

           Reasonableness:                                           165

                      Old Rule                                       165




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                      New Rule:                                       165

                                 Whren v. United States               166

                                 Limitations on Whren                 167

                                 Racial Profiling                     167

                      Fourth Amendment vs. Fifth Amendment Issues     168

           Posse Comitatus; Use of the Military by
                  Civilian Law Enforcement:                           168

                      The Act                                         168

                      Purpose                                         168

                      Case Law                                        169

                      Sanctions for Violations                        170

Chapter 6: Searches with a Search Warrant:                            171

           Search Warrant Defined                                     171

           Preference for Search Warrants                             171

           Why Search Warrants are Preferred:                         171

                      Presumption of Lawfulness with a Warrant:       171

                                 Motion to Quash                      171

                                 Motion to Traverse                   171

                                 Benefit of the Doubt                 173

                      Presumption of Unlawfulness Without a Warrant   173

                      Good Faith:                                     174

                                 The Exclusionary Rule                174

                                 Exceptions to Good Faith Rule:       175

                                            Magistrate Misled         175


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                                            Magistrate Abandoned Judicial Role       175

                                            Lack of Indicia of Probable Cause        176

                                            Warrant Deficient                        176

                                            Affidavit Based on Illegally Collected
                                                   Information                       177

                                            Wiretap Statutes Violation               177

                                 Exigent Circumstances                               177

                                 Examples                                            178

                      Ramey Inapplicable                                             178

                      Consensual Searches                                            178

                      Informants                                                     178

                      Acting in the Performance of His Duties                        179

           Non-Standard Types of Warrants:                                           179

                      Telephonic Search Warrants                                     179

                      Anticipatory Search Warrants                                   179

                      Sneak and Peek Warrants                                        182

                      AIDs Testing                                                   183

                      Records of Foreign Corporations Providing Electronic
                            Communications or Remote Computing Services,
                            per P.C. § 1524.2                                        184

                      Records of Foreign Corporations Providing Electronic
                            Communications or Remote Computing Services
                            in Misdemeanor cases, per P.C. § 1524.3                  185

           Requirement of a “Neutral and Detached” Magistrate:                       186

                      Rule                                                           186



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                      Violations                                                       186

           Composition of a Search Warrant:                                            186

                      The Warrant Itself:                                              186

                                 Contents                                              186

                                 Statutory Grounds for Issuance                        188

                      The Affidavit to the Search Warrant:                             189

                                 Defined                                               189

                                 Probable Cause                                        189

                                 Minimum Contents                                      191

                                 The “Reasonable Particularity” Requirement:           193

                                            The Persons, Places, Things and Vehicles
                                                   to be Searched                      193

                                            The Property to be Seized                  196

                                            Inadvertent Changes to the Language
                                                   of a Warrant and Affidavit          200

                                            General Warrants                           200

                                 Supplementation to the Affidavit                      202

                                 Combined Affidavit with Warrant                       202

                                 Multiple Affidavits                                   203

                                 Staleness                                             203

                                 Fingerprints                                          204

                                 Description of the Facts                              205

                                 Good Faith                                            205

                                 Use of Hearsay                                        205



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                                 Miranda                                       206

                                 Fourth Amendment Violations                   206

                                 Privileged Information                        206

                                 Nighttime Searches                            207

                                 Leaving a Copy at the Scene                   208

                                 Victim and Witness Confidential Information   208

                      The Receipt and Inventory                                208

           Sources of Information Establishing Probable Cause:                 209

                      Other Police Officers                                    209

                      Citizen Informants                                       210

                      Reliable (“Tested”) Informants                           210

                      Unreliable (“Untested”) Informants                       212

                      Anonymous Informants                                     212

                      Confidential Informants:                                 214

                                 Problem                                       214

                                 Rule                                          214

                                 Restrictions                                  214

                                 Revealing an Informant’s Identity             214

                                 Luttenberger Motions                          216

                      An Informant Sworn Before A Magistrate; A Skelton
                             Warrant                                           217

           Probable Cause Issues:                                              217

                      Anonymous Information                                    217

                      The Cleland Warrant                                      217


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                      Trashcan Searches                                      218

           Use of a Search Warrant:                                          218

                      Rule                                                   218

                      Exceptions:                                            219

                                 Exigent Circumstances                       210

                                 Consent                                     219

                                 Inevitable Discovery                        219

                                 Searches of Vehicles                        220

                                 Searches of Persons                         220

                                 Searches Incident to Arrest                 220

                                 Administrative/Regulatory Searches          221

                      Crime Scene Searches                                   221

                      Bank Records:                                          221

                                 Customer Authorization                      221

                                 Administrative Subpoena or Summons          221

                                 Search Warrant                              222

                                 Judicial Subpoena or Subpoena Duces Tecum   222

                                 Police Request                              222

                                 Victimized Financial Institution            222

                      Credit Card Information                                223

                      Telephone Records:                                     223

                                 Unlisted Numbers                            223

                                 Telephone Calls Made                        223


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                                 Certification for Non-Disclosure             223

                                 Pen Registers and Trap and Trace             224

                                 P.C. § 1524.2: Out-of-State Electronic
                                         Communications Information           226

                                 P.C. § 1524.3: Out-of-State Electronic
                                         Communications Information in
                                         Misdemeanor Cases                    227

                      Wiretaps and Eavesdropping:                             228

                                 Federal Omnibus Crime Control and Safe
                                        Streets Act of 1968 vs.
                                        P.C. §§ 629.50 et seq.                228

                                 Statement of Legislative Purpose             228

                                 Prisoner Telephone Conversations             229

                                 Wiretapping:                                 230

                                            Prohibitions                      230

                                            Punishment                        230

                                            Exceptions                        231

                                            Prisoner Visitors                 231

                                            Non-Admissibility                 231

                                            Similar Restrictions              231

                                 A “Controlled Phone Call”                    231

                                 P.C. §§ 629.50 et seq., Wiretaps             232

                                 Requirements for a Wiretap Order:            232

                                            Application for a Wiretap Order   232




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                                 Definitions:                                       236

                                            Wire Communication                      236

                                            Electronic Pager Communication          237

                                            Electronic Cellular Telephone
                                                   Communication                    237

                                            Aural Transfer                          237

                                 Authority to Issue a Wiretap Order                 237

                                 Judicial Guidelines                                241

                                 Contents of the Wiretap Order                      241

                                 Oral Approval in Lieu of Court Order               242

                                 Duration of a Wiretap Order                        242

                                 Progress Report                                    243

                                 Report to Attorney General                         244

                                 Annual Report to the Legislature                   245

                                 Recording, Sealing and Retaining Intercepted
                                       Communications                               247

                                 Application and Orders to be Sealed                248

                                 Notice to Parities to Intercepted Communications   249

                                 Discovery Prerequisites to Use in Evidence         250

                                 Motions to Suppress                                250

                                 Disclosure to Other Law Enforcement Agencies       252

                                 Use of Intercepted Information                     252

                                 Disclosure of Intercepted Information in
                                 Testimony                                          253

                                 Privileged Communications                          253


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                                 Interception of Communications Relating to
                                        Crimes Other Than Those Specified in
                                        the Authorization Order:                 254

                                            Violent Felonies                     254

                                            Other Than Violent Felonies          255

                                            Right to Notice and Copy             256

                                 The “Plain View” Doctrine                       256

                                 Criminal Punishment for Violations              256

                                 Civil Remedies for Unauthorized Interceptions   256

                                 Effects of Other Statutes                       257

                                 Covert Residential Entries                      258

                                 Order for Cooperation of Public Utilities,
                                        Landlords, Custodians and Others         258

                                 Civil or Criminal Liability; Reliance Upon
                                         Court Order                             259

                                 Authority to Conform Proceedings and Order to
                                        Constitutional Requirements              259

                                 Training and Certification of Law Enforcement
                                        Officers                                 259

                                 Severability                                    260

                                 Automatic Repeal                                260

                                 Eavesdropping, Compared                         260

           Limitations on the Use of Search Warrants:                            261

                      Newsroom Searches                                          261

                      Searches of Indian Tribal Property                         261

                      Retention of the Documents                                 262


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           Mechanics of Preparation                                      262

           Service and Return:                                           263

                      To “Any Peace Officer”                             263

                      Necessity to Serve                                 263

                      Night Service                                      264

                      Out-of-County Service                              264

                      Who May Serve                                      264

                      Knock and Notice:                                  265

                                 General Rule                            265

                                 Purpose                                 266

                                 Problem                                 267

                                 Exceptions:                             267

                                            Businesses                   267

                                            Inner Doors of a Residence   267

                                 Refusal:                                267

                                            Implied Refusal              267

                                            Reasonable Time              268

                                 Exigent Circumstances                   269

                                 Doctrine of Substantial Compliance      272

                                 No-Knock Search Warrants                273

                                 Entry by Ruse                           274

                                 Standing; An Absent Tenant              275

                                 Sanctions for Violations                276


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                      Seizing Items not Listed in the Warrant                  278

                      Answering the Telephone                                  279

                      Time Limitations                                         280

                      One Continuous Search                                    281

                      Leaving a Copy of the Warrant:                           281

                                 The Receipt and Inventory                     281

                                 The Federal Rule                              281

                                 The Ninth Circuit Court of Appeal’s Opinion   281

                      Destruction of Property                                  283

                      Sealing the Warrant Affidavit :                          283

                                 How Accomplished                              283

                                 When Warrants May be Sealed                   284

                                 Criticism of Procedure                        285

                                 Court Procedures                              285

                                 Retention of the Documents                    287

           Return of Property                                                  288

           Extensions                                                          288

           Special Masters:                                                    289

                      Rule                                                     289

                      When Not Applicable                                      289

                      The “Special Master”                                     290

                      Documentary Evidence                                     290

                      Procedure                                                290


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                      The Court Hearing                                      291

                      Other Service Conditions                               291

           Other Warrants:                                                   292

                      Inspection Warrants                                    292

                      Rendition (or Extradition):                            293

                                 Art. IV, § 2, Clause 2, U.S. Constitution   293

                                 The Implementing Statute                    293

                                 International Extraditions                  294

                                 Extradition Between States: The
                                        Uniform Criminal Extradition Act:    294

                                            Adoption in California           294

                                            P.C. § 1548.1                    294

                                            Procedure                        294

                      Unlawful Flight to Avoid Prosecution (“UFAP”):         296

                                 Scope                                       296

                                 Purpose                                     296

                                 Procedure                                   296

                                 Parental Kidnappings                        296

                                 Avoiding Custody or Confinement             297

                                 Avoiding Giving Testimony                   297

                                 Avoiding Service of Process                 297

                                 State Extradition                           297

                                 Dismissal of Federal Complaint              297



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© 2007 Robert C. Phillips. All rights reserved.
Chapter 7: Warrantless Searches:                                    298

           General Rule                                             298

           Exceptions to the Search Warrant Requirement             298

           Plain Sight Observations:                                298

                      Rule                                          298

                      No Search                                     298

                      Justification for Seizure                     299

                      No Expectation of Privacy                     299

                      Examples                                      300

                      The “Plain Sight Observation” vs. the Right
                             To Enter a Residence                   301

           Plain Hearing                                            301

           Plain Smell:                                             302

                      Rule                                          302

                      Examples                                      302

                      Exceptions                                    302

           Exigent Circumstances:                                   303

                      Rule                                          303

                      Examples:                                     304

                                 Destruction of Evidence            304

                                 Officers’ Safety                   305

                                 Fresh or Hot Pursuit               305

                                 Search for Additional Suspects     305

                                 Protection of Life and Property    305


                                                     xxix
© 2007 Robert C. Phillips. All rights reserved.
                                 To Prevent the Escape of Suspects, or When
                                        Suspects Arm Themselves                    306

           Special Needs Searches:                                                 306

                      Examples:                                                    307

                                 Random Testing of Student Athletes                307

                                 Random Metal Detector Searches of Students        307

                                 Drug Testing for United States Customs
                                       Service Employees                           307

                                 Searches of Employees’ Backpacks                  307

                                 Pre-Departure Airport Screening Procedures        307

                                 Drug and Alcohol Testing for Railway Employees 307

                                 Administrative Inspections of Closely Regulated
                                       Businesses                                  307

                                 Administrative Inspection of Fire-Damaged
                                       Premises                                    307

                                 Administrative Housing Code Inspections           307

                                 Border Patrol Checkpoints                         307

                                 Sobriety Checkpoints                              308

                                 Entry into a Residence to Enforce a Court Order   308

                                 Fourth Waiver Searches                            308


                                 A Search Warrant Issued Pursuant
                                        to P.C. § 1524.1 (HIV)                     308

                                 Taking of Biological Samples for DNA Databases 308

                      Exceptions to Exceptions:                                    308

                                 A Highway Drug Interdiction Checkpoint            308


                                                     xxx
© 2007 Robert C. Phillips. All rights reserved.
                                 A State Hospital Blood Testing Program            308

           Closely Regulated Businesses or Activities:                             309

                      Pervasively or Closely Regulated Businesses                  309

                      Other California or United States Regulatory/
                             Administrative Searches:                              310

                                 Vehicle Code                                      310

                                 Penal Code                                        311

                                 Fish and Game Code                                311

                                 Financial Code                                    312

                                 United States Code                                312

           School Searches                                                         312

           Airport Searches                                                        312

           Evidence of a Refusal to Consent to a Warrantless Search                313

Chapter 8: Searches of Persons:                                                    315

           Privacy Rights                                                          315

           Rule                                                                    315

           Search Incident to Arrest:                                              315

                      Legal Justification                                          315

                      Transportation Requirement:                                  316

                                 Anyone Who is Arrested and is to be Transported   316

                                 Transporting a Minor                              320

                      Contemporaneous In Time and Place                            321




                                                      xxxi
© 2007 Robert C. Phillips. All rights reserved.
                      Other Requirements and Limitations:                      322

                                 Search Incident to a Citation                 322

                                 Searches of Containers                        322

                                 Property of Booked Person                     323

                                 Arrest in the Home                            323

                                 Arrest in a Vehicle                           323

                                 Strip Search                                  323

                      Searches with Probable Cause:                            323

                                 The Exigency                                  324

                                 Probable Cause from the Defendant’s Admissions 324

                                 P.C. § 833; Search of an Arrestee             324

                      Order of Search & Arrest                                 324

                      Intrusions Into the Human Body:                          325

                                 Shock the Conscience                          325

                                 Interest of Human Dignity and Privacy         325

                                 Factors                                       325

                                 Driving Under the Influence Cases             326

                                 Other Examples of Bodily Intrusions           326

                      Choking:                                                 327

                                 Rule                                          327

                                 Examples                                      328

           Searches with Less Than Probable Cause:                             328

                      Government Employees                                     328



                                                       xxxii
© 2007 Robert C. Phillips. All rights reserved.
                      Drug Testing of Persons in Pervasively
                            Regulated Industries or Sensitive Positions:           328

                                 Railway Workers                                   328

                                 Customs Officers                                  328

                                 Candidates for Public Office                      329

                                 A State Hospital’s Drug Testing Policy for
                                        Expectant Mothers                          329

                      For Students:                                                329

                                 Drug Testing: Athletics and Extracurricular
                                       Activities                                  329

                                 Students in General                               329

                      Frisks (or Pat Down):                                        330

                                 Defined                                           330

                                 For Weapons Only                                  331

                                 Reasonable or Rational Suspicion                  331

                                 The Nature of the Crime as a Factor               331

                                 Procedures:                                       332

                                            Limited to Outer Clothing              332

                                            Removal of Weapons                     332

                                            When Suspect Reaching for a Weapon     332

                                 P.C. § 833.5; Detentions                          333

                                 Problems:                                         333

                                            During Consensual Encounter            333

                                            During Execution of a Search Warrant   333

                                            Feeling a Controlled Substance         333


                                                       xxxiii
© 2007 Robert C. Phillips. All rights reserved.
                                            Frisk Based Upon Uncorroborated
                                                   Anonymous Tip                     335

                                 Other Situations                                    336

                      Abandoned Property:                                            337

                                 General Rule                                        337

                                 The “Threatened Illegal Detention”                  337

                      Searching for Identification                                   338

                      Fingerprint Evidence                                           339

                      Handwriting (and Other Types of) Exemplars                     341

                      Prisoner Searches:                                             341

                                 Inventory Searches                                  341

                                 Search Incident to Arrest                           341

                                 Institutional Needs                                 341

                                 Other Purposes                                      341

                                 Booking (and Inventory) Searches                    342

                                 Containers                                          342

                                 Impounded Property                                  343

                                 Strip Searches of Prisoners                         345

                                 Misdemeanor Booking Searches:                       348

                                            Due Process                              348

                                            Restrictions:                            348

                                                   For Pre-Arraignment Detainees
                                                          Arrested for Infractions
                                                          and Misdemeanor Offenses   348



                                                        xxxiv
© 2007 Robert C. Phillips. All rights reserved.
                                                   Definitions                       349

                                                   Pat Down, Metal Detector and
                                                         Clothing Search             349


                                                   Limitations on “strip search” or
                                                          “visual body cavity search” 349

                                                   Search Warrant Requirement        350

                                                   Touching Prohibited               350

                                                   Physical Body Cavity Searches     350

                                                   Sex of Searchers                  351

                                                   Location of Searches              351

                                                   Penalties for Violations          351

                                                   Civil Remedies for Violations     351

                                            Case Law                                 351

                                 Jail Cells                                          351

                                 Monitoring of Jail Visitations and
                                       Telephone Calls:                              352

                                            Rule                                     352

                                            Exceptions                               354

                                 Monitoring Jail Mail                                355

                                 Regulating Jail/Prison Visitations                  356

                                 Retained Constitutional Rights:                     359

                                            Infringement on Rights                   359

                                            Rights Retained by Prison Inmates        359

                                 DNA Profiling of Prisoners:                         360



                                                         xxxv
© 2007 Robert C. Phillips. All rights reserved.
                                            The DNA and Forensic Identification
                                                  Database and Data Bank Act
                                                  of 1998                              360

                                            Statement of Intent                        360

                                            Purpose                                    360

                                            Identification of Criminal Offenders       360

                                            Biological Samples Limited to “Buccal”
                                                   Swab Samples                        360

                                            Collection of Blood Samples                360

                                            DNA and Forensic Identification Database
                                                 and Data Bank Program               360

                                            Counties’ Responsibilities                 361

                                            Costs                                      361

                                            DNA Testing Fund                           361

                                            The “Jan Bashinski DNA Laboratory.”        362

                                            Offenders Subject to Collection of
                                                  Specimens, Samples and Print
                                                  Impressions                          362

                                            Applies to All Qualified Persons
                                                   Regardless of Sentence              363

                                            Applies to All Qualified Persons
                                                   Regardless of Placement             363

                                            Provisions are Mandatory                   363

                                            Duty of a Prosecutor to Notify the Court   363

                                            Duty of a Court to Inquire                 363

                                            Collection of Samples For Present and
                                                   Past Qualifying Offenses            363

                                            Retroactivity of Provisions                368


                                                        xxxvi
© 2007 Robert C. Phillips. All rights reserved.
                                            Procedures for Obtaining Replacement
                                                  Samples                            368

                                            Analysis of Crime Scene Samples          368

                                            Procedures for Collection of Samples     368

                                            Sanctions for Failure to Provide
                                                   Required Samples                  369

                                            Use of Force                             369

                                            “Reasonable Force,” Defined              369

                                            Written Authorization to Use Force       369

                                            Efforts to Secure Voluntary Compliance   370

                                            Videotaping of “Cell Extractions”        370

                                            Blood Withdrawals in a Medically
                                                  Approved Manner                    370

                                            Expungement of Data                      370

                                            Confidentiality Requirements             370

                                            Dissemination of Information to
                                                  Law Enforcement Agencies           370

                                            Disposal of Samples                      372

                                            Construction and Severability            372

                                            Case Law                                 372

Chapter 9: Searches of Vehicles:                                                     374

           General Rule:                                                             374

                      The “Automobile Exception” to the Warrant Requirement 374

                      Justification for the Rule                                     374




                                                       xxxvii
© 2007 Robert C. Phillips. All rights reserved.
           Warrantless Searches of Vehicles:                                    374

                      Incident to Arrest:                                       374

                                 The Rationale                                  375

                                 Containers                                     375

                                 Probable Cause Not Needed                      375

                                 Limitations:                                   375

                                            The Lunging Area                    375

                                            Contemporaneous in Time and Place   376

                                            Transportation                      377

                                            Search Incident to a Citation       378

                                            Searches where Arrestee is a
                                                   “Recent Occupant:”           379

                      Search With Probable Cause:                               379

                                 General Rule:                                  379

                                 Problem: Limited Amount of Contraband          380

                                 Problem: Vehicle Already Impounded             381

                                 Problem: Closed Containers                     381

                                 Problem: Motorhomes (and Other Vehicles)       382

                                 Problem: Expanding the Scope of the Search     383

                                 Evidence of Probable Cause                     384

                      Vehicle is Itself Evidence                                384

                      Inventory Searches                                        385

                      “Pat Down” of a Vehicle                                   387

                      Statutory Automobile Inspections:                         389


                                                       xxxviii
© 2007 Robert C. Phillips. All rights reserved.
                                 V.C. § 2805(a): Elements          389

                                 V.C. § 2805(b): Elements          380

                                 Time and Manner of Inspections    390

                                 Penalties                         390

                                 Relevant Definitions              390

                                 Downloading the Contents of an
                                       “Event Data Recorder”       391

                                 Case Law                          391

                      Searching for Driver’s License and Vehicle
                             Documentation                         393

Chapter 10: Searches of Residences and Other Buildings:            395

           Private Residence & Expectation of Privacy              395

           General Rule                                            395

           Other Buildings and Places:                             396

                      Hotel & Motel Rooms                          396

                      Boarding House                               398

                      Garage                                       398

                      Fishing Retreat                              398

                      Hospital Room                                398

                      Jail Cell                                    398

                      Curtilage of the Home:                       398

                                 Problem: When Officers Trespass   399

           Temporary or Impermanent Residences                     399

           Businesses                                              400


                                                   xxxix
© 2007 Robert C. Phillips. All rights reserved.
           Workplace Searches of Government Employees:              401

                      Rule                                          401

                      Reasonableness                                401

           Public Restrooms, Adult Bookstores and Dressing Rooms:   402

                      Pay Toilets                                   402

                      Restroom in a Department Store                402

                      Doorless Stall in a Public Restroom           402

                      Curtained Booth in an Adult Bookstore         402

                      Fitting Room in a Department Store            402

                      Spying into Bathrooms, Etc.                   402

           Securing the Premises:                                   403

                      Fourth Amendment                              403

                      General Rule                                  403

                      Limitation; Creating an Exigency:             404

                                 With Probable Cause                404

                                 With No Probable Cause             404

                      Securing Cases:                               405

                      Detention of a Residence                      405

                      Detaining Residents Outside                   406

           Knock and Talk                                           406

           The Doctrine of “Consent Once Removed”                   407

           Observing Contraband from Outside                        407

           Using a Ruse to Cause a Suspect to Open his Door         408


                                                       xl
© 2007 Robert C. Phillips. All rights reserved.
           Searches Incident to Arrest:                     409

                      In a Residence                        409

                      The Protective Sweep:                 410

                                 Defined                    410

                                 Limitation                 410

                                 Arresting Outside          411

                                 Detentions Outside         412

                                 Commercial Establishment   412

                                 Other Situations           412

           Plain Sight Observations                         413

           Preserving the Peace                             414

           Preventing the Destruction of Evidence           414

           Welfare Checks                                   415

           Emergency Exception and Officer Safety           419

           Emergency Exception and the Odor of Ether        419

           Executing an Arrest Warrant                      420

           Third Party Entries with Police                  421

           Knock and Notice                                 422

Chapter 11: New Law Enforcement Technology:                 423

           The Problem                                      423

           Thermal Imaging Device                           423

           A Buster                                         424

           Spike Mike                                       424


                                                      xli
© 2007 Robert C. Phillips. All rights reserved.
           Aerial Surveillance                                               424

           Electronic Tracking Devices (Transmitters)                        425

           Videotaping and Photographing                                     426

           Metal Detectors                                                   427

           Dogs Used to Search or Track                                      427

Chapter 12: Open Fields:                                                     431

           General Rule                                                      431

           Observations Into Private Areas                                   431

Chapter 13: Searches of Containers:                                          432

           Applicable Legal Theories:                                        432

                      Incident to Arrest                                     432

                      Incident to Arrest, in a Vehicle                       432

                      With Probable Cause, in a Vehicle                      433

                      Abandoned Property                                     433

                      Searches of High Tech Containers                       434

                      With Consent of a Third Person
                            having Common Authority                          435

                      The “Single Purpose Container” Theory                  436

                      Containers Searched by Non-Law Enforcement             437

                      Customs Inspections                                    438

                      “Manipulating,” “Squeezing” or “Poofing” Containers:   438

                                 At an Airport                               439

                                 At a Bus Station                            439



                                                    xlii
© 2007 Robert C. Phillips. All rights reserved.
                                 During a Detention and Pat Down         439

                      Warrantless Searches of Other Containers           439

                      Detention of a Container                           441


Chapter 14: Border Searches:                                             443

           General Rule                                                  443

           The statutory arrest and search authority                     443

           Routine vs. Non-Routine Searches:                             445

                      Routine Searches                                   445

                      Non-Routine Searches                               446

                      Destructiveness of the Search                      447

           The Functional Equivalent of a Border                         448

           The “Extended Border Search Doctrine”                         448

           Immigration Checkpoints, Away from the Border                 449

           Roving Patrols                                                449

           The San Ysidro Port of Entry                                  451

Chapter 15: Fourth Waiver Searches:                                      452

           “Prior Consents:” Search & Seizure (Fourth Waiver) Conditions: 452

                      General Rule                                       452

                      Parole                                             452

                      Probation                                          453

                      Parole vs. Probation                               455

                      A “Special Needs Search”                           455

                      Juvenile Probationers                              457


                                                   xliii
© 2007 Robert C. Phillips. All rights reserved.
                      Pre-Trial                                        457

                      Constitutionality                                457

                      Expectation of Privacy                           457

           Standard of Proof Required:                                 458

                      Probation                                        458

                      Parole                                           459

           Limitation: Searches Conducted for Purposes of Harassment   459

           Who May Conduct a Fourth Waiver Search?                     460

                      California Rule                                  460

                      Need to Seek Permission:                         460

                                 Probation                             460

                                 Parole                                461

           Searching While In Ignorance of a Search Condition:         462

                      Issue                                            462

                      Earlier Case Law                                 462

                      Present State of the Rule                        462

                      Other Issues                                     465

                      Arresting and Searching in Ignorance of an
                             Existing Warrant of Arrest                465

                      Parole Hearings                                  465

           Duration of a Fourth Wavier                                 466

           Good Faith Belief in the Existence of a Search Condition    466




                                                  xliv
© 2007 Robert C. Phillips. All rights reserved.
           Rights of Third Parties:                                       466

                      Common Areas                                        466

                      Private Areas                                       468

           Knock and Notice                                               470

           Detentions, Pat Downs and Arrests:                             470

                      Detentions                                          470

                      Pat Downs                                           470

                      Arrests                                             471

           Out-of-State Probationer or Parolee                            471

           AIDS and HIV                                                   471

Chapter 16: Consent Searches:                                             472

           Rule                                                           472

           Limitation; Free and Voluntary Requirement :                   472

                      Burden of Proof                                     472

                      Factors                                             473

                      Circumstances Affecting Voluntariness:              473

                                 Under Arrest                             473

                                 Use of Firearms                          473

                                 Threatening to Obtain a Warrant          474

                                 Threatening to Use a Drug-Sniffing Dog   474

                                 Implying Guilt                           474

                                 Using a Ruse                             474

                                 Threats to Take Away One’s Children      475



                                                    xlv
© 2007 Robert C. Phillips. All rights reserved.
                                 Other Inducements              475

                                 Combination of Factors         475

                      Manner of Inquiry                         475

                      Product of a Constitutional Violation:    476

                                 Illegal Entry or Arrest        476

                                 Illegal Search                 476

                                 Illegal Interrogation          476

                                 Sixth Amendment Violation      476

           The Scope of the Consent:                            477

                      Test                                      477

           Express vs. Implied Consent                          478

           Issues:                                              479

                      Withdrawal of Consent                     479

                      Limiting the Consent                      480

                      Use of a Drug-Sniffing Dog                480

                      Placing Conditions on the Consent         480

                      Use of a Ruse or Deception                480

           Other Elements of a Consent Search:                  481

                      The Right to Refuse                       481

                      Miranda                                   481

                      Written Consent                           481

           Consent During a Prolonged Detention:                483

                      General Rule                              483



                                                         xlvi
© 2007 Robert C. Phillips. All rights reserved.
                      After Detention Ended                       483

           Answering the Telephone                                485

           Sanctions for Violations                               485

           Consent by Others:                                     486

                      General Rule                                486

                      Examples:                                   488

                                 Landlord                         488

                                 Parent                           488

                                 Child                            489

                                 Co-Occupant (Husband and Wife)   489




                                                  xlvii
© 2007 Robert C. Phillips. All rights reserved.

								
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