Posted January 2, 2006

Motley v. Parks, 2005 WL 3556971 (9^th Cir. 2005) 

Ninth Circuit Rules That Parole/Probation Entry Requires PC to Believe That Parolee/Probationer Resides Within Premises 

          We're still awaiting decision from the US Supreme Court as to whether officers must have reasonable suspicion of wrongdoing to make a parole or probation search. (Samson v. California.)

          In the meantime, the Ninth Circuit has ruled that in any event, if the parole or probation search extends to the inside of a residence, officers must have probable cause to believe that the parolee/probationer currently resides there.

          Motley is a federal civil rights suit, filed by attorney Stephen Yagman against officers from several departments. Civil legal advisors should be consulted for guidelines on reducing liability risks by proper documentation of probable cause to believe the parolee/probationer is a resident of entered premises in parole/probation search cases.

Posted: December 9, 2005 

Moreno v. Baca, 02-55627 

Ninth Circuit Revises Parole Search Opinion

           In Moreno v. Baca (9^th Cir. 2005) 400 F.3d 1152, issued on March 7, 2005, the Ninth Circuit ruled that reasonable suspicion is required in order to conduct a parole or probation search. On petition for rehearing (and possibly because the US Supreme Court is considering this issue in Samson v. California), the Ninth Circuit has withdrawn its previous decision and issued a new opinion which eliminates this portion of the ruling.

          This means that as of December 9, 2005, the controlling authority in California remains People v. Reyes (1998) 19 Cal.4^th 743, which held that no suspicion is required for parole/probation searches as to someone who is known to be on search terms. Further hearing in Moreno is possible, and the Samson decision will be issued before June 30, 2006.

Miranda v. City of Cornelius, DJDAR 13393, WL 3071541 

Ninth Circuit Rules Driveway Impoundment Unlawful 

          After a husband and wife were cited for Oregon traffic offenses, their vehicle, which was parked in their driveway, was impounded. They sued, claiming the impoundment constituted an illegal seizure of their property, in violation of their Fourth Amendment rights.

          The Ninth Circuit affirmed their right to sue, ruling that a vehicle lawfully parked in the owner's driveway cannot be impounded for "community caretaking purposes" pursuant to departmental policy, city ordinance or state statute unless it is a traffic obstruction, a safety hazard, or a theft or vandalism target following the incarceration of the driver or owner.

          This ruling, which is not yet final as of December 9, 2005, could have civil liability implications for other situations, such as the act of impounding a DUI arrestee's vehicle when he is arrested after pulling into his driveway.

NEW LAWS—2006

Following are summaries of new and amended statutes affecting law enforcement, effective January 1, 2006. The full text of the statutes should be consulted for application. 

          PC § 136.3. (Added) Absent good cause, the court shall order enjoined parties in DV, stalking and other cases not to take action to locate victims/protected parties. Accord, new PC § 646.91A; Fam. C. §§ 6252.5, 6322.7; and W&I §§ 213.7, 15657.04.

          PC § 171.5. (Amended) Extends airport security area protections (no prohibited firearms, weapons) to the "sterile area" of "passenger vessel terminals."

          PC § 186.22. (Amended) Adds five identity-theft crimes to offenses considered "pattern of criminal gang activity," but at least one other specified felony must also be shown.

          PC § 218.1. (Added) Unlawfully placing obstruction on railroad with gross negligence and causing damage or injury is a 2-3-4 wobbler.

          PC § 236.1. (Added) Violating another's personal liberty for felony prostitution, kiddie porn, extortion or forced labor is "human trafficking," a 3-4-5 felony (4-6-8 if victim is a minor).

          PC § 272(b)(1). (Amended) Age of minors protected by anti-luring law is raised from 12 to "under 14." (Adult stranger cannot lure child away to avoid parental consent. Wobblette.)

          PC § 285. (Amended) Prohibition of incestuous intercourse is now limited to specified relatives who are 14 years of age or older.

          PC § 290.02. (Added) State governmental entities shall use DOJ internet web site to ID 290-registrants and deny them prescription drugs or therapies that treat erectile dysfunction. Accord, new W&I § 14133.225.

          PC § 532b. (Amended) Falsely posing as a military veteran to solicit contributions or to sell goods is a misdemeanor, except for face-to-face begging for less than $10.

          PC § 597z. (Added) Wobblette to sell puppies under 8 weeks old without written approval from a vet.

          PC § 602y. (Amended—new subsection) It is a misdemeanor trespass to "intentionally avoid submission" to a safety screening station at a courthouse or public building entrance, where posted with warning signs that prosecution may result.

          PC § 652. (Added) Infraction to perform or offer to perform body piercing on an unemancipated minor without parent's presence or notarized consent.

          PC § 851.5. (Amended) Statute permitting arrestees 3 telephone calls, within 3 hours of arrest or immediately upon booking, now provides 2 additional calls for custodial parent-arrestee to arrange child care.

          PC § 872. (Amended) Honorably retired officers may provide hearsay testimony at preliminary hearings as to statements made to them when they were active. (Same experience level/POST training foundation required.)

          PC § 1529 (Amended) Changes wording on search warrant form, to order service by "any peace officer," instead of "any sheriff, marshal or police officer."

          PC § 3003 (Amended) High-risk sex offenders (for PC §§ 288, 288.5) cannot be released on parole to reside within one-half mile of a public or private school, K-12. Also, W&I § 6608.5, as amended, prohibits release of sexually violent predators to reside within one-quarter mile of K-12 public or private schools.

          PC § 12072 (Amended) PC § 12084 (Repealed) Sale, loan and transfer of firearms may no longer be accomplished through a law enforcement agency, but must go through a licensed firearms dealer.

          VC §§ 2800.1. 2800.3, 14602.1 (Amended); 1666.1, 17004.7 (Added) Overhaul of police pursuit laws increases penalties for fleeing/evading, mandates police reports  to CHP, specifies detailed contents of pursuit policies affecting civil liability, sets training and certification standards, and requires DMV to include a CDL test question re evasion risks and penalties.

          VC § 4467 (Amended) Victims of rape and sexual battery are added to the list of those who may be issued new license plates, with specified documentation.

          VC § 12814.6 (Amended) Restrictions on licensed drivers aged 16 and 17 are increased to include, during the first 12 months of licensure, no driving between 11:00 p.m. and 5:00 a.m. and no carrying passengers under 20, unless parent, licensed instructor or 25-year-old is in the vehicle.

          VC § 14602.8 (Added) Officers may immediately impound a vehicle driven by a DUI with 10-year priors, if the driver's BAC is 0.10% or higher, or if the driver refuses a chemical test requested by the officer. Notice and hearing are provided.

          VC §§ 21720, 21721 (Added) "Pocket bikes" (midget motor scooters) are prohibited on streets, sidewalks, bike paths, horse trails and public lands, and can be immediately impounded for 48 hours.

          VC § 23109 (Amended) Speed contest with injury is punishable by 30 days to 6 months' jail and/or $500-$1000 fine; second violation in 5 years with serious bodily injury is a wobbler.