Law Watch

Law Watch summarizes pending and recent court cases and legislation of interest to POALAC members. These summaries are provided through the courtesy of Los Angeles County District Attorney Steve Cooley. Law Watch is compiled by Devallis Rutledge, Special Counsel to Mr. Cooley. Summaries are for information only, and are not intended as legal advice. Readers should consult their legal advisors and command staff for advice on policies and application. Contents copyright © 2005, 2006 by the Peace Officers Association of Los Angeles County. Permission is given to POALAC members to reproduce materials for law enforcement, security, training and educational purposes, provided attribution to "POALAC Law Watch" is included.

Posted April 24, 2008

Virginia v. Moore (2008) 553 US ___ , WL 1805745

US Supreme Court Rules that Police do Not Violate the Fourth Amendment by Making an Arrest with PC, Even if the Arrest is Not Authorized by State Law

Police officers in Virginia arrested David Lee Moore for a traffic offense committed in their presence, even though state law directed that the person be released on a written citation. Crack cocaine found in a search incident to arrest was admitted at Moore's trial, over his objection. On appeal, state courts held that the evidence should have been suppressed, because officers should have cited and released Moore, in which case they could not have conducted a search incident to arrest.

The US Supreme Court unanimously reversed this ruling and held that Fourth Amendment search-and-seizure standards do not depend on whether or not officers comply with state laws. Said the court, "When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety."

Under the rulings in Moore and the earlier case of Atwater v. City of Lago Vista, Texas (2001) 532 US 318, an arrest for any offense committed in an officer's presence is constitutional if based on PC, even for fine-only traffic offenses, and even if state statutes do not authorize an arrest. (The court cautioned that the issue could be revisited if there were evidence of "an epidemic of unnecessary minor-offense arrests.")

Posted April 10, 2008

CALIFORNIA SUPREME COURT DECLINES TO REVIEW CASE ON RETURN OF SEIZED MARIJUANA

City of Garden Grove v. Superior Court (2007) 157 Cal.App.4^th 355

In 2005, Garden Grove Police officers stopped Felix Kha for a traffic violation. He had 8.1 grams of "medical" marijuana, which was confiscated. Kha was charged with unlawful possession, but the prosecutor later moved to dismiss the charge after Kha presented proof of medical authorization. Kha asked the court to order his marijuana returned to him, and the court granted this motion. The City appealed.

In November, 2007, the state Court of Appeal in Santa Ana issued a published opinion, upholding the trial court's order for the return of the narcotics. The California Attorney General argued to the court that notwithstanding federal law making possession or furnishing of marijuana illegal, the state's Compassionate Use Act required the return of the federal contraband. The appellate court agreed and ordered the marijuana returned to Kha.

The City then petitioned the California Supreme Court to review the decision and reverse it or order it depublished. On March 19, 2008, the California Supreme Court refused to grant review or to order depublication. This means that the appellate decision is now binding case law and may be cited by "medical" marijuana users and caregivers in future motions for the return of their marijuana.

Law enforcement agencies should consult with their legal advisors to determine their policies with respect to the return of seized marijuana.

Posted January 9, 2008

People v. Chakos (2008) WL 4465108

California Court of Appeal Rules that Narcotics Officer Cannot Testify as an Expert Witness re Possession of MJ for Sale, Absent Training re the Lawful Possession and Use under CUA

Christopher James Chakos was tried for possessing marijuana for sale, based on evidence of his having 6 ounces, a gram scale, home entry video surveillance protection, 99 baggies and $781 cash. The arresting officer testified that these facts were indicative of possession for sale. Chakos presented evidence of a medical recommendation for MJ and explanations of the other evidence. He was convicted.

The Santa Ana division of the Court of Appeal reversed the conviction, ruling that the officer was not qualified to give an expert opinion that Chakos possessed for sale. The court said that an officer does not qualify as an expert unless he has had training on lawful possession and use of marijuana under the "Compassionate Use Act."

In order to testify as an expert in such cases in the future, the court said that the officer must show "substantial evidence of familiarity with the patterns of individuals who, under state law, may lawfully purchase marijuana pursuant to a physician's certificate [and must show] expertise in the ability to distinguish lawful from unlawful possession."

In light of this ruling (which the Attorney General does not plan to appeal), narcotics officers may wish to review their training programs to be sure they include information about the CUA and the ways to tell lawful from unlawful possession of marijuana.

Posted December 14, 2007

NEW LAWS—2008

The following are summaries of some changes affecting law enforcement. The full text of the statutes should be consulted for application.

PC §§ 26, 31. (Amended) Substitutes the term “persons who are mentally incapacitated” in lieu of “idiots.”

PC § 146g. (Added) Peace officers, government attorneys and trial court employees who sell confidential information, or photos/videos from within secure facilities, and those who solicit them to do so, commit a misdemeanor. ($1000 fine+forfeiture)

PC § 186.22a(c). (Amended) Allows district attorneys and city prosecutors to maintain an action for money damages against a criminal street gang that is under an injunction.

PC § 241. (Amended) Adds parking control officers to the list of assault victims justifying enhanced penalties (new (b)), and re-designates subsections (c) and (d).

PC §§ 273.5(i), 646.9(k)(2). (Amended) Requires sentencing courts in DV cases to consider issuing a 10-year restraining order against convicted defendants sentenced to prison or jail, or given probation.

PC § 288.4. (Re-designated) Re-designates former § 288.3 as § 288.4. (Pedophile solicitation of minors.)

PC § 290. Twenty-nine former subsections have been renumbered.

PC § 398. (Added) Owner of an animal that bites a person must inform the victim within 48 hours of the owner’s name, address and telephone number and the animal’s name and license tag number and vaccination status. ($100 infraction)

PC § 530.5. (Amended) Makes numerous changes to the statute on identity-theft crimes, affecting crime elements, punishment, subsection designations, and record-entry exoneration of the innocent victim.

PC § 538d(d). (Amended) Vendors of law enforcement uniforms must verify the ID of buyers by ID card and letterhead authorization before sale. ($1000 misdemeanor)

PC § 647. (Amended) Re-designates subsections (j) and (k), and replaces the former text of subsection (e) with the former text of subsection (j).

PC § 679.05. (Amended) Terminology change: “domestic violence counselor” is now “domestic violence advocate.” Before interviews with others, the advocate must advise the victim re limitations on the confidentiality of victim-advocate communications.

PC § 3058.65. (Amended) Increases period of notification of impending parole to be given to family members in DV/child abuse cases from 45 to 60 days.

PC § 4575. (Added) Unauthorized possession of a cell phone, pager or wireless internet device in jail is a $1000 misdemeanor; inmate possession of tobacco is a $250 infraction.

PC § 12022.6. (Amended) Increases the threshold amounts for some excessive-taking/damage sentence enhancements.

GC § 6254 (f)(2). (Amended) Adds additional sex crime victims to the list of those whose identities are exempt from disclosure under the Public Records Act.

GC § 8571.5. (Added) Police acting under emergency declarations may not disarm persons lawfully carrying or possessing firearms and ammunition.

H&S § 118948. (Added) It is a $100 infraction for anyone to smoke in a vehicle containing a minor, but police may not make a stop solely to check for driver's violation.

VC § 22450. (Amended) Driver approaching a stop sign at a railroad grade crossing must stop before a marked limit line or the first track before crossing.

VC § 23123. (Amended) Effective July 1, 2008, only hands-free cell phones may be used by adult drivers while driving. ($20 increasing to $50 infraction)

VC § 23124. (Added) Effective July 1, 2008, minors may not use any cell phone while driving. ($20-$50)

VC § 23154. (Added) It is unlawful for a person who is on probation for DUI to drive with a BAC of 0.01% or higher, as measured by a PAS test, which the person impliedly consents to take. (Officers take the license and issue a temporary, per new § 13389.)

VC § 13385. (Added) Effective July 1, 2008, applicants for drivers license/renewal must sign an acknowledgment that DUI causing death can result in murder charges.

VC § 23109.2. (Added) Vehicles used for speed contest, exhibition of speed, or reckless driving on a highway or offstreet parking lot are subject to 30-day impoundment.

Posted November 30, 2007

California Supreme Court Expands Defense “Pitchess” Access

Chambers v. San Diego Superior Court, 2007 WL 4147423

          When a court discloses information from an officer’s personnel file in response to a defense attorney’s “Pitchess motion” for discovery in a criminal case (usually in PC 148 and similar cases), Evidence Code section 1045 requires the judge to issue a “protective order,” limiting use of the information to authorized court proceedings and preventing further disclosure.

          In Chambers, the California Supreme Court considered whether a defense attorney who gets Pitchess information in one case and investigates the details of the reported incident to develop “derivative evidence” of officer misconduct (derived from investigating the disclosed complaint in the personnel file) could then use that derivative evidence in another case involving the same officer, or whether this would violate the protective order from the first case. The court said the defense should be allowed to use the derivative evidence after filing a second Pitchess motion and getting the same discovery of the underlying complaint:

          “When complainant information has been ordered disclosed to counsel who, when representing a different defendant, succeeds under Pitchess in discovering the same complainant information relating to the same officer, counsel may then refer to the derivative information uncovered as part of the followup investigation.”

          Example: Lawyer Brown, representing defendant Smith in a 148 case, files a Pitchess motion and obtains the name, address and phone number of someone who once filed a complaint of excessive force against the arresting officer, Officer Noble. Lawyer Brown interviews this complainant and derives the name and address of other witnesses, as well as full details of the alleged excessive force. Later, Lawyer Brown represents defendant Jones in a different 148 case involving Officer Noble, files a Pitchess motion, and is given the same complainant information as in Smith’s case. Under Chambers, Lawyer Brown need not duplicate the earlier investigation but can merely use in Jones’s case the derivative information from his earlier investigation in the Smith case, and this will not violate the earlier protective order.

          Agencies should consult their civil legal counsel for policy advice as to the implications of this ruling.

Posted November 13, 2007

Ninth Circuit Rules that no "Deadly Force" Instruction is Required in Excessive Force Lawsuit

Acosta v. Hill (2007) WL 3013451

          Elizabeth Acosta sued a police officer who rendered her unconscious by use of a carotid hold when she persisted in assaultive and resistive behavior. She lost, and appealed on the ground that the jury should have been instructed on the standard for police use of deadly force, rather than simply reasonable force.

          The Ninth Circuit held that its prior rulings on the necessity for a "deadly force" instruction were abrogated by the recent US Supreme Court decision in Scott v. Harris (see posting of April 30, 2007). Interpreting Scott as having ruled that a "reasonable force" instruction is adequate to cover claims of unlawful deadly force, the Ninth Circuit upheld the jury's verdict for the officer.

          Note: This decision may effectively nullify Smith v. Hemet (9^th Cir. 2005) 394 F.3d 689, which had held that a plaintiff alleging the use of force substantially likely to cause great bodily injury would be entitled to a "deadly force" instruction. Consult your civil legal advisor for an opinion.

Previous Postings