Search and Seizures

California Laws 2016 – Photographing and video recording cops in public (Penal Code 69 and 148)

The California state legislature enacted 807 new laws during the 2015 legislative session.

Video recording of police officers by private citizens has become somewhat of a contentious issue for some cops. Officers have been known to order citizens to stop … or to have seized the recording device … or even to arrest the recording individual for interfering with the performance of police duties.

This year, the California legislature brought clarity to this situation, making it clear that such recording in a public place is not, in and of itself, a violation of the law.

To accomplish this, the legislature amended two Penal Code sections, 69 and 148. The former makes it a crime to deter or prevent an officer from performing his duties and the latter makes it a crime willfully resist, delay, or obstruct a peace officer in the performance of his duties.

Section 69 was amended to add subdivision (b), which provides:

“The fact that a person takes a photograph or makes an audio or video recording of an executive officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a).”

Section 148 was amended to add subdivision (g), which provides:

“The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.”


File Legal Motion for Unreasonable Search Warrant (CA Penal Code 1538.5)

Back in September, there was an unknown arsonist on the loose in Alameda.  This arsonist was believed to have been responsible for at least 7 different fires in the city.  Soon, however, there were 2 men arrested in conjunction with the crime, one a 27-year-old front man for a local folk band and the other a 22-year-old homeless man.  What happened next will surprise you:  although the arsons were originally the focus of the police investigation into these 2 men, a search of their homes and further scrutiny of their movements in and around the time the various fires were set has yielded something else, they both now stand accused of other crimes!

It happens more often than you might think.  Local law enforcement officials make an arrest and new evidence shows up during the course of the investigation that links an individual to another crime.  In this case, the folk singer, and part-time sound engineer, was found to have child pornography on his computer.  Meanwhile, it turns out that the transient has been accused of raping an intoxicated woman in a local park.

What this cautionary tale should remind us of is the nature and scope of search warrants.  Taking for example the case of the folk singer and formerly accused arsonist, police were allowed to search his home, business, car, or anywhere else they could think of that might lead to evidence against him.  This included his computer, where they found the images of child pornography.  The thing about search warrants, in other words, is that they allow police officers or other agents of the law to search for any illegal activity, not simply evidence of a particular crime.

You do have at least one option, however, you may ask your legal representative to file a motion that states that the search was unreasonable, that there was not enough information concerning your case to amount to probable cause for the search warrant to have been issued in the first place (CA Penal Code 1538.5).  If it can be proven, for example, that the search warrant served on the folk singer was based on flimsy probable cause, then it is possible that the evidence of child pornography discovered during the course of that search will be inadmissible.


Alameda Sheriff’s Office Sued for Embarassing Strip Searches

Californians in the Bay Area are well known for taking their rights and duties as citizens seriously.  Part of that history has been the tradition of protesting certain actions by politicians, law enforcement agencies, or governmental decisions as a whole.  Most recently, the story of 4 women with a history of political activism has caught the attention of the public.

This past February, a registered nurse, a social worker, a civil rights activist, and the wife of an Oakland mayoral candidate (names withheld in order to protect privacy) were arrested at the Elihu Harris State Office Building in Oakland for participating in a protest against police brutality.  What happened next was shocking, even to these 4 seasoned protestors who have, between them, been arrested on similar charges of civil disobedience at least 13 times.

In a civil suit against the Alameda County Sheriff’s Office, the women all claim that they were subjected to abuses bordering on the criminal.  They argue that they were asked to take off the outer layer of their clothing in front of male prisoners and deputies without any consideration from the officers conducting what was supposed to be a routine strip search.  One of the deputies helping to search the 4, seems not only to have been unsympathetic, but downright offensive.

For example, when one demonstrator said aloud that she refused to take of her shirt because she felt especially vulnerable due to her age, the deputy is said to have yelled, “You must take off your shirt.  You have no rights,” according to court documents.  Furthermore, the complainants allege that the cell they were housed in was abominable, the walls and floors, they say, were covered in human waste and blood, along with other putrefied foodstuffs and trash.  The suit requests that restitution be made to the women involved and that the procedure for processing and conditions of housing in prisons be altered for the better.


Hayward Shootings by Police Officers Spur Civil Rights Suits (42 US Code 14141)

About a year ago, both 21-year old (names withheld for privacy) were killed in incidences involving local law enforcement officers in the Hayward area.  An attorney representing the family has taken on these two cases on the basis that they are violations of civil rights.  In one case, the police had pulled him over on suspicion of vehicular theft.  Arguing that he was reaching for a weapon, they shot him 6 times while he remained in the vehicle, which was in park.  For the other case, he was accidentally killed as local law enforcement shot at the driver, but killed the passenger instead.

There has been no response yet from city officials, but these two suits bring up possible police misconduct.  According to the “Police misconduct provision,” (42 US Code 14141) it is illegal for law enforcement officials, both state and local, to divest any person of the rights they are afforded by the Constitution and by other laws in the United States.  Included in this legal stipulation are things like “excessive force, discriminatory harassment, false arrests, coercive sexual conduct, unlawful stops, and searches or arrests.” 

In order to prove that there was police misconduct, however, the parties involved in the two aforementioned civil suits will have to prove that there exists a pattern to the police behavior outlined in the complaint.


San Francisco Federal Appeals Court Grant Police Access to Civilian Cell Phones but Not Answer Calls

Procedures involving search and seizure can be complicated. For example, when a person is stopped on suspicion of a DUI or any other potential violation, they have the right to refuse police to search their vehicle, as it is considered an extension of their home.  But what happens when law enforcement officials ask to search your cellular phone?  A San Francisco federal appeals court decision has recently made what is acceptable and unacceptable in such a case.

A driver (name withheld for privacy) was driving near the Mexican border in San Diego County when a police officer stopped him, citing “suspicious behavior.”  He gave the officer permission to take a look at one of the 3 cell phones in the vehicle he was driving, but then the officer took things a little too far.  Believing that he was part of a group whose aim is to smuggle illegal immigrants into the country, the police officer proceeded to answer the driver’s phone when it rang, pretend to be driver, and spoke to several people on the phone.

The federal appeals court has deemed that this kind of behavior is inappropriate and cannot be considered part of a normal search of a cellular phone, which does include looking at incoming and outgoing text messages.  In this case, the several arrests that occurred due to the evidence police discovered by impersonating the driver must now be reevaluated and, though there is a legal precedent for such a search when a warrant has been issued, on a routine stop with no warrant, police cannot answer calls or impersonate individuals in order to gather evidence against them.


San Francisco Police Will Record Video During Searches

Thanks in part to a grant, 50 plainclothes officers will be hitting the streets with video cameras attached to their chests, at a $1,000 per instrument. Police Chief Greg Suhr claims that the implementation of this new method of conducting searches and serving warrants will eliminate any ambiguity or argument when it comes to whether someone has given permission for a search.

Additionally, this use of technology is also meant to keep individual citizens from claiming that they were treated in an unfair or unlawful manner.  Shur insists that it is the police who will be in the spotlight, but will this really be the case?  Besides San Francisco, there are other police departments that have been using chest-mounted cameras, places like Rialto (in San Bernardino County).

Of course, it would be wise for officers of the law to think before rejoicing about this new system.  Actually, it’s been better for defendants in the past than it has for law enforcement.  More often than not, footage from such cameras has been utilized to prove misconduct, rather than to prove that police acted responsibly and legally.  One other group that has learned its lesson is the San Francisco Fire Department.  Footage of the Asiana Airlines Flight 214 crash from helmet-mounted cameras caused such a stir that Chief Joanne Hayes-White has banned them, citing a 2009 policy already in place.


Oakland’s Operation Ceasefire Draws Criticism

Mayor Jean Quan has determined to take a different approach to the rising problem of violent crime in Oakland, one that has garnered a great deal of criticism and is simply unconstitutional.  Operation Ceasefire is a simple plan: officers trick suspected gang members into meeting with them in order to offer them certain social services, and then threaten them with arrests if they do not straighten out.

One of the key issues with this particular method is that it has led to at least 15 secret arrests.  In other words, Oakland governmental officials and law enforcement agents have continually refused to divulge the identities of the persons arrested and to make public what their alleged crimes are.  This is simply not something that is done when it comes to protecting the rights of citizens.

As you can imagine, the ACLU (American Civil Liberties Union) has recently gotten involved, demanding to know the names and crimes of the persons arrested as part of Operation Ceasefire. And it’s only fair that they do so.  California law states that persons arrested on suspicion of a crime have the right to be arraigned within two days of arrest, not two weeks after.  If these arraignments have already occurred, then why has the mayor refused to release what should be public information?  It may be that she feels as if she is stuck between the proverbial “rock and a hard place,” feeling the growing pressure from the public to curtail the violence in Oakland, which has recently included the deaths of two innocent young children.


Oakland Registered Sex Offender Parolee in Jail After Woman’s Disappearance

56-year-old (name withheld for privacy) currently sits in a Santa Rita jail without bail.  His rap sheet is long; he’s been arrested for two murders in the past (one for which he was acquitted in the 1980s and the other for which he pled no contest in the killing of a fellow inmate) and has been convicted of rape, forcible rape, and kidnapping with the intent to commit a sexual offense.  But the recent charges against him have nothing to do with the terms of his parole.  He’s been arrested because of “unspecified parole violations” so that local law enforcement officials can hold him for questioning in the disappearance of 50-year-old investigator for the Federal Defender in Sacramento.  She’s been missing for nearly a week now and police have no leads except for him.  She was last seen leaving her home on the 600 block of Aileen Street in North Oakland and supposedly headed to the drugstore.

How can the police hold him without bail?  Well, the simple fact is that they couldn’t, if he wasn’t a parolee.  Even after leaving prison, former California inmates may find themselves feeling as if they are still incarcerated.  For the most part, the state works on a mandatory parole system.  Parolees must consent to many things that other citizens do not: they may be searched at any time without a warrant; they must live within certain delineated and restricted limits; and, as in this case, they are often required to register as sex offenders for the rest of their natural lives.  Parole violation hearings, however, are still subject to the same rules and regulations as criminal hearings and trials, parolees retain the right to due process (5th & 14th Amendments to the United States Constitution).  Yet, it is clear that the police can often hold parolees against their will for various violations of their parole agreement, even if they have nothing to do with the crime they are investigating at the time.


UC San Diego Student Wins $4.1 Million Suit Against DEA

When we see news items concerning the Drug Enforcement Administration, there’s usually a positive spin.  For example, though Californians have been embroiled in a bout with the federal government for some time over the legitimacy of medical marijuana, and its legality (SB 420 & Prop 215) the DEA continues to make busts in the state – without respecting voters’ wishes.  Now, however, Californians can chalk at least one more thing up in the negative column when it comes to this particular federal agency. And it involves a 23-year-old man named Daniel Chong.

In April of 2012, the DEA conducted a drug raid in San Diego and arrested 8 people, including Chong – a UC San Diego engineering student who happened to be visiting his friend’s home at the time. After having interrogated Daniel, DEA agents were able to surmise that he had nothing to do with the 18,000 ecstasy pills, marijuana, and magic mushrooms that were recovered during the raid.  They told him that, as it was a misunderstanding and that all he had to do was wait in the holding cell for a short while – a cell that had no windows and was approximately 5 feet by 10 feet in area.  So Chong waited, handcuffed, for them to return – for 4 days.

It seems that they’d forgotten about Chong completely.  He had to survive by drinking his own urine, collecting it on a metal bench that seems to have been the only furniture in the room.  After beginning to hallucinate, attempting to reach the sprinkler in the ceiling, and crying out repeatedly for assistance, Chong decided to accept what he believed to be the inevitable – death.  He broke his eyeglasses with his teeth and began to carve a message to his mother on his arm: “Sorry, Mom.” By the time the DEA remembered him, he’d lost 15 pounds and was covered in his own filth.  Chong also suffered renal failure, a perforated esophagus, and severe dehydration.

Although the Justice Department has issued a formal and public apology, Chong’s story should serve as a wake-up call for the citizens of this nation, especially considering that there have been no disciplinary charges levied as of yet.  If the DEA has this level and amount of power, then where does this leave the average person who happens to be at the wrong place at the wrong time?

Violation of Fourth Amendment Rights in Los Angeles County

The Fourth Amendment to the United States Constitution is one that many people are familiar with – it is the portion of what is known as the “Bill of Rights” that prohibits searches and seizures that are not reasonable.  It also requires probable cause for the issuance of warrants.  Part of the Fourth Amendment (the portion on unreasonable seizures) includes arrests.  An individual cannot, for example, be placed in custody in the back of a law enforcement vehicle for minor violations or infractions.

Yet, this is exactly the type of thing that has become routine in some desert cities on the outskirts of Los Angeles County due to the racial profiling practices of the police in the Mojave Desert, specifically in Palmdale and Lancaster.  These traditionally primarily white areas of the state have experienced an influx of Latino and African American residents over the past few years has evidently caused racial tensions to mount, including a higher rate of racial profiling by agents of the law and of hate crimes.  Members of the community who have relocated to the area began to notice that they were being treated differently by police officers – some of whom have gone so far as to harass and intimidate members of ethnicities other than white.  For example, African Americans have unfairly been placed in the back of patrol cars unnecessarily and both blacks and Latinos are much more likely to be stopped and cited for very minor offenses.

Although LA County officials have made great strides in attempting to revamp and reform the entire system, specifically in places like Antelope Valley, citizens still express concern over the continuing reluctance of local law enforcement officials to admit to any wrongdoing in these stations.