Liberty For Life Association

     C Jefferson

Liberty For Life

CONTENTS

Support our advertisers

Hire STRATEGIZE.com

The World's Leading Strategic Consultancy

STRATEGIZE CONSULTANCY


The Earth Pan

LFL Founder Out Of Hiding With Extraordinary Solution to fix
Government:
Peopleisim.org

Peopleisim


The Construct of Live & Origin of Everything - Soulisim

Soulisim



MenuVert
Support Adverts it helps cover costs. Ads randomly generated by advertising companies:

ADVERTISE HERE:

 

RESISTANCE

Sec. 2283-2285 Resistance Generally

A person may lawfully resist the commission of a public offense against him or his family, or against hid property, or against another person (Sec. 2283).  The right of one person to aid another in defending against a threatened injury is defined by statute and does not differ substantially form the right as it existed at common law (Sec. 2284).  A person may make resistance sufficient to prevent an illegal attempt to take or injure by force property in his lawful possession (Sec. 2285).

Sec. 2283 In General

The situations where lawful resistance will justify what otherwise would be a crime are described generally in the title of the Penal Code on prevention of public offenses.  In addition, specific provisions on this kind of justification are contained in the chapter on homicide.  Under the general provisions, lawful resistance to the commission of a public offense may be made by the party about to be injured, and by other parties.

An individual may make resistance sufficient to prevent an offense against his person, his family, or a member thereof, or to prevent an illegal attempt by force to take or injure property in his lawful possession.  This provision must be read in the light of the common law rule that deadly force was justified only if the offense as a forcible and atrocious crime.  Any other person may, in aid or defense of the person about to be injured, make resistance sufficient to prevent the offense.

(see Sec. 300 and Sec. 2286 & 2284 for self-defense)

78.  Deering's Pen C Sec. 693.

Instructions on lawful resistance in prosecutions for assault by means of force likely to produce great bodily injury (Pen C Sec 245) should be drawn within the purview of Pen C Sec. 693, and not Pen C Sec. 197. People v Moody, 62, CA2d 18.

Sec 2284 Defense of others

The right of one person to aid another in defending against a threatened injury is defined by statute, and it does not differ substantially from the right as it existed under the common law.  With regard to homicide, the statue refers to lawful defense of a person attacked "or of a wife or husband, parent, child, master, mistress, or servant" of the defendant, whereas the code provisions on lawful resistance generally refer to "any other person," in addition to the defendant's "family or some member thereof".

The Civil Code provides that any necessary force may be used to protect from wrongful injury a wife, husband, child, parent, other relative, or member of one's family, or of a ward, servant, master, or guest.

Sec. 2285 Defense of habitation or property

A person may make resistance sufficient to prevent an illegal attempt to take or injure by force property in his lawful possession.  The resistance may extent to the taking of life where it is offered in defense against one who manifestly intends or endeavors by violence or surprise to commit a felony or to enter a habitation for the purpose of doing violence to someone there.  However, only resistance sufficient to prevent the offence is justifiable.  Thus homicide committed in defense of habitation or of real or personal property is not justified against a mere trespasser who is not acting feloniously.  Even force short of homicide, if excessive, will make the defense unavailable.  Necessary force may be used to repel a trespasser who goes upon the premises with the intent and means to commit a felony.  But when excessive force against a trespasser is either actually used or unlawfully attempted, a criminal assault is committed.

The Civil Code provides that any necessary force may be used to protect from wrongful injury one's property, or the property of a wife, husband, child, parent, other relative, or a member of one's family, or of a ward, servant, master, or guest.  However, this provision of the penal statute authorizing resistance sufficient to prevent an illegal attempt by force to take or injure property in hid lawful possession.  However, when an officer charged with the duty of enforcing a judgment by execution lawfully and peacefully enters premises, one had no right to expel that officer or his assistant from the premises.

SELF-DEFENSE

The right of a party violently assaulted by another to repel such attack and to protect himself is a law of nature antedating written enactments (Sec. 2286).  The right of self-defense is based on the reasonable appearance of imminent peril to the person attacked (Sec. 2287).  Generally, one who is assaulted may lawfully use only so much force as is necessary to repel the attack and will be held responsible for a marked excess (Sec. 2288). Generally, it is not a prerequisite to the successful assertion of the defense of self-defense that the defendant retreat; one who is attacked may pursue his assailant until he has secured himself from danger, if that course appears to him to be reasonably necessary (Sec. 2289).  Where the danger has passed and the attacker has withdrawn, there can be no justification for the use of force (Sec. 2290).  Self-defense may not be claimed by a defendant who willfully, and without any necessity for his own protection, creates a danger with which he was thereupon threatened or who invites a situation which gives rise to the aarent necessity of self-defense (Sec. 2291).

Sec. 2286  In General

The right of a party violently assaulted by another to repel such attack and to protect himself is a law of nature antedating written enactments and is recognized in the legislation of all civilized people, it is a "sacred" right.

The term "self-defense," with a single exception, is not mentioned in the Penal Code, although that code specifically covers the substance of the privileges of self-defense in connection with the crime of homicide.  The code also contains general provisions on lawful resistance.  Self-defense is available in a criminal prosecution for assault, and one may interpose the defense of self or property in a civil action for assault.  A peace officer has the right of self-defense where he encounters resistance in making an arrest.  Self-defense may be a defense to the crime of possession of firearms by ex-felons or narcotics addicts and may be a defense to possession to mayhem.  Self-defense is not available to one who by prearranged duel, or by consent, enters into a deadly mutual combat in which he slays his adversary.

A person may use necessary force to protect himself where he is assailed in his own house, or upon his own premises; where he has reasonable ground to believe that a felony is about to be committed on his person; where he is under a reasonable arehension of great bodily harm; or where he is about to be subjected to an unlawful arrest, unless he knows or should know that he is being arrested by a peace officer.

Sec. 2287 Arehension of peril

The right of self-defense is based on the reasonable appearance of imminent peril to the person attacked.  It requires a showing that defendant was actually in fear of his life or of serious bodily injury and that the conduct of the other party was such as to produce that state of mind in a reasonable person.  Thus, it is not enough that there existed in the mind of the defendant a belief that he was in actual peril.  It must also aear that, as a reasonable person, he had sufficient grounds for his belief.

The justification of homicide does not depend on the existence of actual danger but on the appearance of danger.  Thus, it is not necessary to show the existence of actual peril, for an aarent situation of danger may also justify self-defense, if it is of such a nature as might result in a similar mistake by a reasonable person.  A person acting gin self-defense on aearances thus acts at his risk with regard to the reasonable-person standard.

There can be no reasonable ground for arehending harm in the absence of some overt act or physical demonstration.  Therefore, mere threats on a previous occasion will not justify a deadly assault, when the party assailed has made no demonstration of a hostile or equivocal character.  Nor can a person justify his acts on the ground of self-defense by introducing evidence of a previous affray entirely independent of and separate from the assault with which he is charged.

Where there is a prima facie proof of facts tending to suort a finding of reasonable cause to arehend death or great bodily harm, the defendant is entitled to testify as to his own mental reaction, and is error not to allow him to do so.  It is for he jury to determine whether, as a reasonable person, the defendant was justified in believing himself in danger.

Sec.  2288 Reasonable force

Generally, one who is assaulted may lawfully use only so much force as is necessary to repel the attack and will be held responsible for a marked excess.  The means employed to defend must be necessary to prevent the injury.  If excessive or improper force is employed, such force will itself constitute an assault and battery though the act would have been lawful if excessive or improper force had not been used.

Only such force as a reasonable person similarly situated should deem necessary to insure his safety, is permissible.

In determining whether a defendant acted within the proper scope of the right of self-defense, the finders of fact should keep in mind the amount or extent of force that a reasonable person would employ under similar circumstances.  For acts done in self-defense to remain lawful, the force on uses must be only such as appears reasonably necessary, in view of the circumstances, to prevent the impending injury.

14. People v Conkling, 111 C 616, 44 P 314; People v Keys, 62 CA2d 903, 145 P2d 589; People v Prez, 12 CA3d 232, 90 Cal Rptr 521 (in prosecuting for battery on a police officer engaged in the performance of his duties, assuming the right of self-defense exists, it would be subject to the same rules as in other cases).

31. People v Blackshear, 182 CA2d 71, 5 Cal Rptr 618

Where, from the nature of the attack, a person, as a reasonable man, is justified in believing that his assailant intends to commit a felony on him, he has the right in defense of his person to use all force necessary to repel the assault.  People v. Mercer, 210 CA2d 153, 26 Cal Rptr 502.

Sec. 2289 Duty to retreat

Generally it is not a prerequisite to the successful assertion of the defense of self-defense that the defendant "retreat to the wall."  A person confronted or attacked is not bound to retreat but is entitled to stand and defend himself and act as a reasonable person under the circumstances as they aear to him....  A defendant who is an aggressor has no right to stand his ground but must retreat.

One who is attacked may pursue his assailant until he has secured himself from danger, if that course appears to him, and would aear to a reasonable person in the same situation, to be reasonably and aarently necessary.

Sec. 2290  Termination of peril

As the right of self-defense is based on the appearance of imminent peril to the person attacked, where the danger has passed and the attacker has withdrawn, there can be no justification for the use of further force.  Where the originally assailed person becomes the aggressor of the original assailant, there is, of course, no further need for self-defense by the former.

Sec. 2291 Effect of creation of danger by person claiming defense

Self-defense may not be claimed by a defendant who willfully and without any necessity for his own protection creates a danger with which he is thereupon threatened, or who invites a situation which gives rise to the aarent necessity of self-defense.  But an instruction that in effect states that the defendant must have been without fault before he could resort to self-defense is too broad and therefore not correct.

Sec.  2312 Idiocy

A DEFENSE FOR THE DA: The Penal Code provides that idiots are incapable of committing a crime!

FORMER JEOPARDY

Sec. 2313 In general; Constitutional Guarantee

The California Constitution provides that no person may be twice put in jeopardy for the same offense.  And the Fifth Amendment to the general Constitution provides that no person may be subject for the same offense to be twice put in jeopardy of life or limb.  This latter provision alies to the states through the due process clause of the Fourteenth Amendment.  The constitutional prohibition of double jeopardy consists of three separate guarantees, protecting an accused against a second criminal prosecution for the same offense after acquittal, against a second preoccupation for the same offense after conviction, and against multiple punishments for the same offense.  Jeopardy is thus a broader concept than the former conviction of acquittal, and "once in jeopardy" in a general sense embraces also the claim of former conviction or acquittal on trial for the same offense, although the pleas for once in jeopardy and former conviction or acquittal are not the same.  The doctrine of double jeopardy has no alication in a single criminal prosecution of a defendant who is tried but once on several accounts.

The right to not to be put a second time in jeopardy for the same offense is as important, and to be as sacredly regarded, as the right of trial by jury, or any other constitutional provision intended for the protection of life, liberty, or property of a citizen.  A plea based there on is favored by the courts, which are inclined to construe the constitutional prohibition liberally in favor of the defendant.

Although the minimum federal standards of double jeopardy protection for criminal DEFENDANTS are binding on state courts, a higher level of double jeopardy protection may be delineated under the California Constitution.

Sec. 2361 Res judicata distinguished

The doctrine of double jeopardy to a certain extent overlaps with, but nevertheless is distinct from, the doctrine of res judicata, which has an independent field of alication in criminal law.  Generally speaking, res judicata is based on former final adjudication of the merits of the same issue, whereas once in jeopardy is invoked on the basis of a prior proceeding involving the same offense where that prior proceeding reached a stage constituting "jeopardy" as defined by the courts.

Where the offenses respectively involved in a former and in a subsequent prosecution are not identical in terms of the doctrine of once in jeopardy, res judicata may nevertheless have the effect that a decision in the former prosecution denying the existence of an element common to both offenses bars the subsequent prosecution.  But since the doctrine of res judicata is legally different from the doctrine of once in jeopardy, a defendant relying on res judicata should separately raise this point by proper and timely objection to the introduction of evidence inconsistent therewith.a

EFFECT OF SETTING ASIDE OR REVERSING CONVICTION AT DEFENDANT'S REQUEST

The plea of once in jeopardy does not lie against a retrial of the accused following the setting aside or reversal of his conviction in consequence of his motion or appeal (Sec. 2336).  However, a determination on appeal that the evidence was insufficient as a matter of law to suort the conviction bars a retrial on the grounds of former jeopardy (Sec. 2337).  Where on obtains a reversal of a conviction of a lesser included offense, he cannot be retried on the originally charged greater offense (Sec. 2338)

Sec. 2336 In General

The plea of once in jeopardy does not lie against a retrial of the accused following the setting aside or reversal of his conviction in consequence of his motion or aeal.  A defendant who succeeds in having his conviction set aside thereby impliedly waves any objection to being retired on the charge of which he was convicted.  It is axiomatic that when he successfully attacks a judgment of conviction he subjects himself to a retrial which may reach the same result.  Thus, jeopardy as to an offense of which a defendant has been convicted continues during appellate proceedings and retrial following reversal of the judgment, but ends as to the offenses of which he has been expressly or impliedly acquitted.

Likewise, where the original sentence is set aside on appeal at defendant's behest it cannot be successfully pleaded as constituting former jeopardy former jeopardy and there is no denial of due process in ordering a new trial on the single issue of the penalty to be imposed.  However, the prosecution of double jeopardy bars and increase in punishment after appeal and retrial.

Whenever a verdict, whether valid in form or not, is rendered on an accusation, either good or bad, and the defendant for any cause moves in arrest of judgment, or alies to the court to vacate a judgment already entered, he is presumed to wave thereby any objection to being placed a second time in jeopardy, though in attacking his conviction he does not ask for a new trial.  Where an order arresting judgment has been entered, and from the evidence on the trial there is reason to believe the defendant guilty of the offense originally charged, or of another offense, the verdict is not a bar to another prosecution.  But if no evidence appears sufficient to charge him with any offense, the arrest of judgment operates as an acquittal of the charge on which the indictment or information was founded.

The granting of a new trial places the parties in the same position as if no trial had been had, and the former verdict or finding cannot be pleaded in bar of any conviction which might have been had under the accusatory pleading.

Sec. 2337  On Grounds of insufficiency of evidence

A determination on appeal of a criminal conviction that the evidence was insufficient as a matter of law to suort the conviction bars a retrial under the federal double jeopardy clause.  An appellate determination of insufficient evidence is tantamount to a finding that the trial court should have directed a verdict of acquittal, which bars a retrial.  A new trial is also improper after the equivalent decision on aeal.  The test to be alied by an appellate court is reviewing a conviction is whether from the evidence, including reasonable inferences to be drawn there from, there is any substantial evidence of the existence of each element of the offense charged.

However, the foregoing rule only bars a retrial when the state has failed as a matter of law to prove its case and not when a trial judge independently weighs the evidence rather than alying the substantial evidence rule and determining legal sufficiency.  In California, in considering a motion for a new trial on the ground that the verdict is contrary to the evidence, the trial court is not bound by the jury's decision as to conflicts in the evidence or inference to be drawn there from.  It is under a duty to give the defendant the benefit of its independent conclusion as to the sufficiency of credible evidence to suort the verdict.  If the trial court grants a new trial under this motion, the decision is not an acquittal and is not a bar to retrial for the offense of which the aellant has been convicted.

Sec. 2338 Lesser Included Offense: Crime of Lesser Degree

Inasmuch as a conviction of the lesser and included offense amounts in law to an acquittal of the higher offense originally charged, if one charged with a certain offense is convicted only of a lesser offense necessarily included therein, he cannot, on obtaining a reversal of that conviction, be retried on the original charge.  Therefore, where a defendant has procured reversal of a manslaughter conviction, he cannot, on the resulting retrial, be convicted of murder.  Where a trier of fact convicts a defendant of what it mistakenly views as a necessarily included offense, an attack on the validity of the conviction of the lesser offense does not undermine the adjudication that defendant was not guilty of the greater offense.  Any error affecting the expressed verdict of guilty does not affect the conclusiveness of the implied verdict of acquittal.

The double jeopardy clause precluded convicting a defendant of a higher degree of crime after he has secured the reversal of his conviction of the lower degree of the offense.

A defendant who appeals from an erroneous judgment convicting him of first degree murder and sentencing him to life imprisonment and obtains a reversal and a retrial may not, after again being convicted of first degree murder, be sentenced to death; the double jeopardy provisions of the state and federal Constitutions aly to forbid a greater punishment for the same crime.

Sec. 2339 In general: availability of extraordinary remedies for Jeopardy:

No need to wait for appeal - go straight to Habeas or mandamus. - requires specific form Sec 2340, burden of proof on defendant;

JURISDICTION

GENERALLY

Sec. 2425: In General

... Since the court derives it's jurisdiction from the law, its jurisdiction extends only to such matters as the law declares criminal, and when it undertakes an imprisonment for an offense to which no crimiminality is attached, it acts beyond its jurisdiction.

ARREST AND DETERMINATION

GENERALLY

An arrest is the taking of a person into custody in a case and in the manner authorized by law (Sec. 2454).  Both the federal and state Constitutions provide that the right of the people to be secure in their persons against unreasonable seizures may not be violated, and that a warrant may not issue except on probable cause, suorted by oath or affirmation, particularly describing the persons to be seized (Sec. 2455).  Certain persons are exempted from arrest under the circumstances specified by statute (Sec. 2456)  Peace officers, and private persons, and public officers and employees under certain circumstances, are authorized to make arrests (Sec. 2457)

Sec. 2455

Both the federal and state Constitutions provide that the right of the People to be secure in their persons against unreasonable seizures may not be violated, and that a warrant may not issue except on probable cause, suorted by oath or affirmation, particularly describing the persons to be seized.  The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest.  To be lawful, an arrest must be made pursuant to an arrest warrant setting forth the commission of a specific crime, or without a warrant under the circumstances prescribed by the Penal Code; an arrest cannot be made merely for the investigation of a crime.  However, it is not "unreasonable" under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person as his judgment dictates following an arrest, and such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested.

An arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.  On the other hand, an arrest without a warrant within the home is per se unreasonable in the absence of probable cause and exigent circumstances.  The term "exigent circumstances" means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.  In each case, the claim of an extraordinary situation must be measured by the facts known to the law enforcement officers involved.  The courts have recognized only a few emergency conditions justifying warrantless arrests, including hot pursuit of a fleeing felon, destruction of evidence, and ongoing fire.  Alication of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offence has been committed.  However, a warrantless arrest in the home may be valid despite the absence of exigent circumstances, if police presence in the home is consensual.

Forms: Jury instruction as to warantles arrest in home, 3 California Criminal Forms & Instructions Sec. 44:7.

Forms: Jury instruction defining "exigent circumstances" authorizing lawful warrantless arrest in the home, 3 California Criminal Forms & Instructions Sec. 44:8

"The "hot pursuit" exception to the warrant requirement alies in situations where the delay occasioned by obtaining a warrant would permit the escape of a suspect in a "grave offense" who remains "dangerous to life and limb."  It does not aly where the suspect poses no imminent danger if allowed to temporarily remain at large."  People v Keltie (1983, 2d Dist) 148 CA3d 773, 196 Cal Rptr 243

Sec. 2458 In general; issuance form, and validity or warrant

...In order to satisfy the Fourth Amendment's requirement of probable cause, the complaint underlying the arrest warrant must be verified and must recite competent facts that lead a person of ordinary caution and prudence conscientiously to entertain a strong suspicion of the accused's guilt.  A complaint based on "information and belief" and couched in the statutory language of the alleged offence may suort a valid arrest warrant if the complaint alleges sufficient facts for the magistrate to conclude that probable cause suorts the warrant in that the allegations indicate: (1) the commission of the crime by the person whose arrest is sought; and (2) the reliability of the information and credibility of its source; absent such allegation, the warrant fails and an arrest made pursuant to it is illegal.

The forms of warrants are set out by statute.

... When a defendant challenges the validity of an arrest warrant, the burden is on the prosecution to establish its legality.

ARREST WITH A WARRANT

Sec 2458 In General; issuance, form and validity of warrant

...

In order to satisfy the Fourth Amendment's requirement of probable cause, the complaint underlying the arrest warrant must be verified and must recite competent facts that lead to a person of ordinary caution and prudence conscientiously to entertain a strong suspicion of the accused's guilt.  A complaint based on "information and belief" and couched in the statutory language of the alleged offence may suort a valid arrest warrant if the complaint alleges sufficient facts for the magistrate to conclude that probable cause suorts the warrant in that the allegations indicate: (1) the commission of the crime by the person whose arrest is sought; and (2) the reliability of the information and credibility of its source; absent such allegations, the warrant fails and an arrest made pursuant to it is illegal.

The forms of warrants are set out by statute...... The warrant must also state the time of issuance of the city or county where it is issued, and must be signed by the issuing magistrate, judge, or justice, or other authority issuing it, the title of his office and the name of the court or other issuing agency. The affixing of a seal is not required.  At the time the warrant is issued, if the offense is bailable, the magistrate is required to indorse on the warrant a statement of the sum in which the defendant is to be admitted to bail.  (A judge or justice court who is not a member of the State Bar must also obtain the concurrence of the district attorney of the county in which he sits or the state attorney general. Sec 2458)

A warrant for arrest can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence suortive of the magistrate's finding of probable cause.  The case law permitting a defendant to attack a facially sufficient search warrant affidavit on the grounds that it contains misstatements of omissions is equally applicable to arrest warrant affidavits.  If misstatements are negligently made, the trial court must excise the negligent misstatements, and test the remainder for probable cause.  Whether a misstatement was negligent, made with a reckless disregard for the truth, or intentional is a question of fact for the trial judge, and if there is substantial evidence to suort his conclusion, a reviewing court is bound by his decision.

.. When a defendant challenges the validity of an arrest warrant, the burden is on the prosecution to establish its legality.

Every person who maliciously and without probable cause procures a warrant of arrest to be issued and executed is guilty of a misdemeanor.

Sec. 2460.  Duty of officer to execute; liability for execution

When a warrant valid in form and issued by a magistrate of competent jurisdiction is placed in the hands of an officer for execution, it is his duty to carry out its commands without delay.  In fact, disobedience of any lawful judgment, order, or process of a court of justice is a contempt of the authority of the court; and failure to serve a duly issued warrant is dispedience of a lawful order of the court, and a contempt thereof, for which the disobeying officer may be punished.

Sec. 2461 Bench Warrant.

ARREST WITHOUT A WARRANT.

Sec. 2462 In general; by peace officers

A person authorized to act as a peace officer may arrest without a warrant: (1) whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence; (2) when the person arrested has committed a felony, although not in his presence; or (3) whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether to not a felony has in fact been committed.

..

Whether an offense has been committed in an officer's presence is determined by whether he, as a witness, can testify from actual knowledge to every element of the offense.

The written order of any member of the Board of Person Terms, or of each county board of parole commissioners, is a sufficient warrant for any peace or prison officer to return to actual custody any conditionally released or paroled prisoner...

Sec. 2463 By public officer or employee

...may arrest without a warrant whenever he has reasonable cause to believe that the person to be arrested has committed a misdemeanor in his presence which is a violation of a statute or ordinance which such officer or employee has the duty to enforce.  Where the person so arrested does not demand to be taken before a magistrate, the public officer or employee making the arrest must prepare a written notice to aear and release the person on his promise to aear, as prescribed by designated statutory provisions.

80. Deering's Pen C Sec 836(2).

A police officer may not arrest an  individual without a warrant for a misdemeanor not committed in his presence. Miller v Glass (1955) 44 C2d 359, 282 P2d 501.

81. Deering's Pen C Sec 836(3).

An arrest upon suspicion or upon information of other that an offense has been committed is wholly unauthorized.  Re Alication of Milstead (1919) 44 CA 239, 186 P 170; Boyes v Evans (1936) 14 CA2d 472, 58 P2d 922; Hanna v Raphael Weill & Co. (1949) 90 CA2d 461, 203 P2d 564.

Sec. 2464  By private person; indemnification

A private person may make an arrest: (1) for a public offense committed or attempted in his presence[5]; (2) when the person arrested has committed a felony, although not in his presence [6]; or (3) when he has reasonable cause for believing the person arrested has committed a felony and a felony has in fact been committed [7].

COERC : A citizen may arrest any person they believe has committed a felony; they can arrest anyone who commits a misdemeanor in their presence.

[5]. Deering's Pen C Sec. 837(1)

The term "in his presence," as used in Pen C Sec. 837(1), is liberally construed to mean not merely physical proximity but whether the crime is aarent to the person's senses, including those of hearing and smell.  People v Burgess (1959,2d Dist) 170 CA2d 36, 338 P2d 525

A private person may arrest for a misdemeanor if it is committed or attempted in his presence, and the arrest is a valid one and continues even though he transfers custody of the accused to a peace officer.  Re K. (1978, 2d Dist) 82 CA3d 295, 147 Cal Rptr 96.

IN an arrest effected by a private citizen pursuant to Pen C Sec. 837(1), where the validity of the arrest turns on whether the arrestee's conduct constituted a public offence, the these to be alied must be one of whether the person making the arrest had a reasonable good faith belief that it did.  Gomez v Garcia (1980, 2d Dist) 112 CA3d 392, 169 Cal Rptr 350.

A citizen in whose presence a misdemeanor has been attempted or committed may effect a citizen's arrest, pursuant to Pen C Sec. 837(1), and in so doing may both summon the police to his aid (Pen C 839)), and delegate to the police the physical act of taking the offender into custody.  People v Johnson (1981, 1st Dist) 123 CA3d, 495, 176 Cal Rptr 687.

[7]. Deering's Pen C Sec. 837(1)

It is for the best interests of society that those who offended against the laws shall be promptly punished, and that any citizen who has good reason to believe that the law has been violated shall have the right to cause the arrest of the offender.  Barela v Superior Court (1981) 30 C3d 244, 178 Cal Rptr 618, 636 P2d 582.

For a valid arrest by a private citizen under Pen C Sec. 837(1), the requirement that there in fact be a felony committed can only be met if there is evidence of the corpus delicti and it is an offense known by the arresting party to have been committed. People v Aldapa (1971, 2d Dist) 17 CA3d 184, 94 Cal Rptr 579 (city police officers acting beyond the limits of the geographic area under their authority, and thus having only that power to arrest conferred upon a private citizen in the same circumstances, were not authorized, under Pen C Sec. 837(3) to arrest defendant for possession of heroin for sale, where the only evidence offered to show possession of heroin was heroin found after defendant had been arrested; since there was no evidence, prior to the arrest, of a corpus delicti of the crime charged, the arrest based upon that of a "private citizen" was required to be declared invalid).

REASONABLE OR PROBABLE CAUSE

Sec 2467 In general

 

The test of reasonable or probable cause for an arrest is not whether the evidence on which the arrest was made is sufficient to convict but only whether the prisoner should stand trial. In other words, the validity of an arrest does not depend on whether defendant may in fact be found guilty or the offense for which he is arrested.  An arrest and search based on events as consistent with innocent activity as with criminal activity is unlawful ((Remers v Superior Court of Alameda County (1970) 2 C3d 659, 87 Cal Rptr 202, 470 P2d 11))

"Probable", as used in the expression "probable cause," means having more evidence for than against; suorted by evidence that inclines the mind to believe but leaves some room for doubt.  People v Guy (1956, 2d Dist) 145 CA2d 481, 302 P2d 657; People v Rixner (1958, 2d Dist) 157 CA2d 387, 321 P2d; People v Carnes (1959, 2d Dist) 173 CA2d 559, 343 P2d 626.

Suspicion, even though reasonable, does not constitute probable cause to make an arrest.  People v McLean (1970, 2d Dist) 6 CA3d 300, 85 Cal Rptr 683.

As with any intrusion upon an individual's personal security, simple good faith on part of the arresting officer is not enough and, in justifying the particular intrusion the police officer must be able to point to specific and articuable facts which, taken together with rational inferences from those facts, reasonably warrant his suspicion.  Cunha v Superior Court or Alameda County (1970) 2 C3d 352, 85 Cal Rptr 160, 466 P2d 704 (not followed People v Handy (2d Dist) 16 CA3d 858, 94 Cal Rptr 387) as stated in Santos v Superior Court (1st Dist) 154 CA3d 1178, 202 Cal Rprtr 6; People v Martin (1973) 9 C3d 687, 108 Cal Rptr 809, 511 P2d 1161, cert den 414 US 1113, 38 L Ed 2d 740, 94 S Ct 844.

Forms: Jury instructions defining reasonable cause to arrest, 3 California Criminal Forms & Instructions Sec 44:5

Forms: Jury instructions as to burden of establishing lawfulness of arrest, 3 California Criminal Forms & Instructions Sec 44:9.

Sec. 2468  Questions of law and fact; review

what constitutes reasonable grounds for arrest without a warrant is always a question of fact: People v White (1958, 2d Dist) 159 CA2d 586, 324 P2d; People v Scott (1959, 1st Dist) 170 CA2d 446, 339 P2d 162, cert den 361 US 937; People v Miller (1959, 2d Dist) 176 CA2d 571, 1 Cal Rptr 656

An appellate court is not bound by the trial judge's determination as to the existence of probable cause.  Michel v Smith (1922) 188 C 199, 205P 113.

In passing on the question of probable cause to make an arrest without a warrant, the court reviews, as it were, the sufficiency of the evidence on which the arresting officer acted in making the arrest.  People v Clark (1973, 4th Dist) 30 CA3d 549, 106 Cal Rptr 147, cert den 414 US 852, 38 L Ed 2d 101, 94 S Ct 146.

Sec. 2477  information from informers

...

As a general rule, absent some circumstances that would cast doubt on their information, private citizens who are witnesses to or victims of a criminal act should be considered reliable informants, provided they have furnished underlying facts sufficiently detailed to cause a reasonable person to believe that a crime had been committed and the named suspect was the perpetrator, and that the police are aware of the identity of the person providing the information and of his status as a true citizen informant.  The term "reliable informant" also includes a person whose information has in the past led to the police to valid suspects.  Moreover, statements of an informant admitting crimes or declarations against interest tend to show reliability.  It has been stated that such statements contain "an internal guarantee of reliability."

Where there is no evidence to show reliability of an informant, his information does not constitute probable cause for arrest.

IN FACT: It was know to the Sheriffs that DEFENDANTS wife, the Sheriffs "informant", had made previous false police calls on July 9, 2002 for which she was ordered out of the family home, and other false calls and that the DEFENDANTS wife had stolen the DEFENDANTS million dollar life insurance policy.  The BLATANT FACT that the sheriffs informant, the Defendant's wife who was in the process of a divorce and custody battle with the Defendant, was of UNCLEAN HANDS and had every incentive to provide FALSE information and was by EVERY DEFINITION OF THE LAW AN UNRELIABLE INFORMANT.  And the very FACTS in the CUSTODY ORDER IN THE SHERIFFS POSESSION PROVED THAT THE INFORMANT WAS LYING: Mother shall have custody form the children from 3:00 pm to 6:00 pm.  "evidence justifying the conclusion that reliance on the information was reasonable must be presented to the court."  People v Talley (1967) 65 C2d 830, 56 Cal Rptr 492, 423 P2d 564.

Whether an informant was reliable and whether a police officer relied on the information received must be determined by the trial court acting with sound discretion (Lorenzen v Superior Court of San Francisco (1957, 1st Dist) 150 CA2d 506, 310 P2d 180; People v Dean (1957, 2d Dist) 151 CA2d 165, 311 P2d 85).  The only issue is the credibility of the officer and the soundness of his reasons for relying on his informant (People v Dean (1957, 2d Dist) 151 CA2d 165, 311 P2d 85).

 

While it may be perfectly reasonable for law enforcement officers in the field to break into homes and make arrests on the basis of information furnished to them by other officers, when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness.  People v Adkins (1969, 2d Dist) 272 CA2d 196, 78 Cal Rptr 397.

The question of probable cause to justify an arrest without a warrant must be tested by the facts which the record shows were known to the arresting officers at the time the arrest was made. People v Pompei (1968, 1st Dist) 267 CA2d 581, 73 Cal Rptr 163.

The statement of a narcotics trafficker in custody cannot from the basis for an arrest, because his obvious motive is to ingratiate himself with the police for purely selfish reasons.  Ming v Superior Court of Santa Barbara County (1970, 2d Dist) 13 CA3d 206, 91 Cal Rptr 477.

The report of a confessed thief who informs after he is in custody is not alone sufficient to constitute reasonable cause for arrest.  Pollock v Superior Court of Los Angeles County (1969, 2d Dist) 272 CA 2d 548, 77 Cal Rptr 565

A motorist's failure to have or produce the registration card for his vehicle, without more, cannot reasonably give rise to the belief that the vehicle is stolen, nor can the failure of the motorist to have his driver's license in his immediate possession reasonably transform the coincident lack of a registration card into grounds to believe the motorist guilty of grand theft.  Assitional suspicious circumstances are necessary to justify the making of an arrest without a warrant for automobile theft.  People v Superior Court of Los Angeles County (1972) 7 C3d 186, 101 Cal Rptr 837, 496 P2d 1205.

The general rule that when an officer furnished another officer with information that leads to an arrest, the People must show the basis for the former officer's information, does not aly where the information relates specific and articulable facts observed by the informing officer, is not hearsay based on hearsay, and is not a conclusionary statement based on unknown sources.  People v Poehner (1971, 4th Dist) 16 CA3d 481, 94 Cal Rptr 94.

People v Hogan (1969) 71 C2d 888, 80 Cal Rptr 28, 457 P2d 868 (Information provided by an untested or anonymous informer is not, without some showing justifying reliance, sufficient to justify an arrest); Lewis v Superior Court of San Francisco (1964, 1st Dist) 226 CA2d 102, 37 Cal Rptr 773 (fact that alleged information was relayed by one officer to another adds no element of reliability to original informant).   

The mere fact that suspect walked rapidly away from arresting officers on becoming aware of their presence did not authorize his arrest.  People v Zabala (1963, 5th Dist) 217 CA2d 550, 31 Cal Rptr 712.

Mere flight at the aroach of a police officer is not, itself, ground for arrest, but an officer is justified in investigation to discover the reason for the flight.  People v Villalobos (1966, 2d Dist) 245 CA2d 561, 54 Cal Rptr 60.

MANNER OF MAKING ARREST

Generally Sec. 2479-2482

The procedure to be observed in making arrests is prescribed by statute.  An arrest for a felony may be made on any day and at any time of the day or night.  But an arrest for a misdemeanor may be made as nighttime only in the manner and under the circumstances specified by statute: not between the hours of 10:00 pm and 6:00 am unless: (1) the arrest is made without a warrant, pursuant to specified Penal Code provisions; (2) the arrest is made ina public place; (3) the arrest is made when the person is in custody pursuant to another lawful arrest; or (4) the arrest is made pursuant to a warrant which, for good case show, directs that it may be served at any time of the day or night.

Sec. 2481  Notice of authority

The person making the arrest must inform the person to be arrested of the intention to arrest him, the cause of his arrest, and the authority to make it.

The person making the arrest must also, on request of the arrestee, inform the arrestee of the offense for which he is being arrested.

SEE Assault and Other Willful Torts Sec. 62 for the civil liability of an arresting officer for failure to declare authority to arrest.

USE OF FORCE

..

The Penal Code provides generally that the person arresting may be subjected to such restraint as is reasonable for his arrest and detention [47].

Whether the force employed is reasonably necessary is for the determination of the jury [51].

[47] Deering's Pen C Sec 835

An instruction is proper, where it is alicable, to the effect that whoever makes a lawful arrest for a felony, officer of or citizen, must use as little violence as possible, although, if resisted, he may use sufficient force to effect his purpose, even to the extent of taking life.  People v Brooks (1901 131 C 311, 63 P 464.

[51]  People v Adams (1890) 85 C 231, 24 P 629; Peole v Burres (1980, 1st Dist) 101 CA3d 341, 161 Cal Rptr 593.

Annotations: Police action in connection with arrest as violation of Civil Rights Act, 42 USC Sec 1983, 1 ALR Fed 519; When does police officer's use of force during arrest become so excessive as to constitute violation of constitutional rights, imposing liability under Federal Civil Rights Act of 1871 (42 USCS Sec 1983), 60 ALR Fed 204.

Law Reviews: Permissible force, 39 CLR 96, 110; Problem of police brutality, 10 Santa Clara LR 168; Justification for use of force in criminal law, 13 Stan LR 566; "Reasonable" and "necessary" restraint, 32 St BJ 607; Police officers and the use of deadly force - the continuing saga, 5 West St. U LR 301.

Froms: Complaint against peace officer alleging unjustified assault and battery during arrest, 22 Am Jur P1 & Pr Forms (Rev), Sheriffs, Police, and Constables, Forms 132, 133

Practice References: 9 POF 2d p. 435, Police Officer's Use of Excessive Force in Making Arrest (proof that police officer, in making an arrest for a misdemeanor and later a felony, used excessive force).

Sec. 2484  Self-defense

to justify the peace officer in taking the life of the purported offender to save or preserve his own, there must be a real or aarent necessity for the resort to such an extreme measure [56].

[56] People v Newsome (1921) 51 CA 42, 195 P 938.

Sec. 2485  in arrest for misdemeanor

A peace officer has the right to use only such force as is necessary to arrest a misdemeanment [57].  He may be held civilly [58] or criminally [59] liable for using excessive force.  Except in self-defense, a peace officer making an arrest for a misdemeanor [61], or preventing the escape of an arrested misdemeanant, has no right intentionally to shoot or kill the offender.

[57]  Towle v Matheus (1900) 130 C 574, 62 P 1064

As to liability of public officer for assault and battery under Tort Claims Act, see GOVERNMENT TORT LIABILITY Sec 46

Annotations; Peace officer's civil liability for death or personal injuries caused by intentional force in arresting misdemeanment, 83 ALR3d 238.

[59]  People v Wilson (1918) 36 CA 589, 172 P 1116

Law Reviews: Watson and Ramey: the balance of interests in nonexigent felony arrests, 13 San Diego LR 838.

Sec. 2486  In arrest for felony

A police officer is held to the same standard as a private citizen in using deadly force to arrest a felony suspect [65].  hence, deadly force may not be used against a fleeing suspect unless the felony is of the sort that threatens death or serious bodily harm, of there are other circumstances which reasonably create a fear of death or serous bodily harm to the officer or to another [66].

.. statutes which on their face authorize the use of deadly force by a police officer or a private citizen in attempting to arrest a fleeing felon have been construed to aly only where the felony committed is one which threatens death or great bodily harm [69].

[65 & 66] Kortum v Alkire (1977, 1st Dist) 69 CA3d 325 Cal Rptr 26.

[69] Peole v Pirorkowski (1974, 2d Dist) 41 CA3d 324, 115 Cal Rptr 830; Peple v Quesada (1980, 1st Dist) 113 CA3d 533, 169 Cal Rptr 881.

Although Pen C Sec 196(3), 197(1), 197(2), 197(4), 835a, 837, on their face authorize the use of deadly force by a police officer or a private citizen in resisting an attempt to commit, or in arresting the perpetrator of a nonviolent felony and do not distinguish between violent and nonviolent felonies, such statutes are to be construed to prohibit the use of deadly force by anyone, including a polilce officer, against a fleeing felony suspect unless the felony is of a violent variety.  Kortum v Alkire (1977, 1st Dist) 69 CA3d 325, 138 Cal Rptr 26.

Sec. 2487  In entering a dwelling

Law Review: Probable cause for entry, 56 CLR 1680; Knock and demand policy, 2 UCLA LR 132

"knock and notice" requirements

People v Hirsch (1977, 2d Dist) 71 CA3d 987, 140 Cal Rptr 13: Police officer did not give defendant and the occupants of his apartment sufficient time to admit them before they kicked in the door and entered, and thus they did not comply with the knock and demand requirements of Pen C Sec. 844

RESISTANCE TO ARREST

Sec 2488 In general; unlawful arrest

...

The arrest of one who is exempt is not void, but only voidable, and the exempt person has no legal right to offer physical violence or resistance to the arresting officer.

Although cases have held that reasonable resistance to an unlawful arrest may rightfully be made either by the person sought to be arrested of by third persons acting in his aid[17], the legislature has changed this rule by providing that ir a person has knowledge, or, by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such a person to refrain from using force or any weapon to resist such arrest [18].  By so providing, the legislature intended to do away with the form rule that a person could resist an unlawful arrest [19].  It has similarly been held that unlawful detention by a police officer does not justify unlawful resistance thereto [20], although there is a contrary authority on this point [21].  However, a distinction has been made between a technically unlawful arrest and an arrest accomplished with excessive force.  In the latter case, a person may use reasonable force to defend life and limb against excessive force by the arresting officer [22].   It has also been held that the duty of a person to refrain from using force or a weapon to resist arrest [23] is not applicable to a charge under the Penal Code provision relating to resisting officers in the discharge of their duties [24], and that a person who uses reasonable force to protect himself or others against the use of unreasonable excessive force in making an arrest cannot be convicted under the latter statute because the arresting officer is not "in the discharge of is duty"[25].  Moreover, the rule still seems to be that if a private person attempts to make an unauthorized arrest, the party sought to be arrested may resist [26].

 

[17]  People v Craig (1907) 152 C 42, 91 P 997; People v Perry (1947) 79 SA2d Su 906, 180 P2d 465; Jackson v Superior Court of Merced County (1950) 98 CA2d 183, 219 P2d 879; People v Spinosa (1953) 115 CA2d 659, 252 P2d 409.

[18]  Deering's Pen C Sec 834a

While an arrest is a "seizure," and an arrest without warrant or probable cause is "unreasonable' within the purview of the Forth Amendment, the state in removing the right to resist arrest does not deny due process, contribute to, or effectuate a deprivation of an arrestee's constitutional rights, or alter or diminish the remedies available against the illegality of an arrest without probable cause, but merely requires a person to submit peacefully to the inevitable and pursue his available remedies through the ordinary judicial process.  People v Curtis (1969) 70 C2d 347, 74 Cal Rptr 713, 450 P2d 33.

Under Pen C Sec 834a, a citizen subjected to an attempted arrest by a known police officer must submit quietly.  People v Baca (1966, 2d Dist) 247 CA2d 487, 55 Cal Rptr 681.

[19]  People v Coffey (1967) 67 C2d 204, 60 Cal Rptr 457, 430 P2d 15 (not followed on another point, People v Escarcega (1st Dist) 43 CA3d 391, 117 Cal Rptr 595) (the legislative intent behind the enactment of Pen C Sec. 834a was to withdraw the former privilege of resistance to an unlawful arrest, and, limiting the effect of the statute to cases of actual arrest as oosed to detention for questioning, to remove disputes as to their legality from the streets to the courtroom).

Pen Code Sec 834a, prohibits forcible resistance to unlawful as well as lawful arrests.  People v Curtis (1969) 70 C2d 347, 74 Cal Rptr 713, 450 P2d 33; People v Soto (1969, 5th Dist) 276 CA2d 81, 80 Cal Rptr 627.

Pen C Sec. 243 makes felonious an assault on a peace officer who is actually engaged in the performance of his duties; however, since a peace officer is under no duty to make an unlawful arrest, an assault on a peace officer by a person who is resisting an unlawful arrest is not a felony under Pen C Sec 243, but may be a misdemeanor under Pen C 834a, which prohibits forcible resistance to unlawful as well as to lawful arrests.  People v Cuevas (1971, 5th Dist) 16 CA3d 245, 93 Cal Rptr 916.

Annotations: Modern status of rules as to right to forcefully resist illegal arrest, 44 ALR3d 1078.

[20]  People v Newton (1970, 1st Dist) 8 CA3d 359, 87 Cal Rptr 394 (disagreement with on other grounds Peple v Morall (4th Dist) 144 CA3d 406, 192 Cal Rptr 601, op withdrawn by order of ct).

As to detention generally, see Sec 2491

[21]  An officer engaged in unlawful detention for questioning may be resisted by means of reasonable force.  People v Jones (1970, 2d Dist) 8 CA3d 710, 87 Cal Rptr 625.

Forms: Jury instruction as to resistance to detention, 3 California Criminal Forms & Instructions Sec 44:12

[22] People v Curtis (1969) 70 C2d 347, 74 Cal Rptr 713, 450 P2d 33 (in a persecution for battery on an arresting officer, the question of the exercise of reasonable force and the right to self-defense, distinct from that of the lawfulness of the arrest, is for the trier of fact to determine).

Use of excessive force by a peace officer is a defense to an alleged violation of Pen C Sec. 245(b) (assault by means of force likely to produce great bodily injury upon the person of a peace officer), since it takes the peace officer outside the scope of his duties.  People v Burres (1980, 1st Dist) 101 CA3d 341, 161 Cal Rptr 593.

Forms Jury instructions as to what constitutes excessive force in making an arrest, 3 California Criminal Forms & Instructions Section 44:6; Answer to charge of assault and battery , alleging that force used by defendant was necessary for self-protection during attempt by plaintiff to commit unlawful arrest, 2 Am Jru P1 & Pr Forms (Rev), Assault and Battery Form 213.

BAIL

Where the defendant is already free on bail at the time of his conviction, it has been held optional with the

§2583. Statutory provisions

Under the statutory provision, a person charged

2. After conviction and pending alication for probation or aeal

 20 Cal Jur 3d (Rev) P822

§ 2584 In General

The penal Code provides that the admission of a defendant to bail following his or her conviction of an offence not punishable with death and pending appeal or alication for probation, is committed to the discretion of the trial court in all cases other than those involving misdemeanors or appeals from judgments imposing fines only.  This discretion should not be arbitrarily exercised. =  Deerings’s Pen C § 1272(3)

The trial court abused its discretion in denying an alication for a stay of execution and release on personal recognizance of a defendant convicted and sentenced for bribery violations where the trial court correctly found that defendant’s appeal from the conviction was not frivolous or vexatious, where it further indicated it found there was no danger that defendant would try to escape, and where it did not aear that defendant would have the opportunity to commit similar criminal offenses pending aeal, he having been removed from office on conviction.  Re Robinson (1917, 2d Dist) 16 CA3d 539, 94 Cal Rptr 148.

Where defendant, after conviction of involuntary manslaughter, was granted probation for three years with incarceration in the county jail for one year as a condition thereof, it was an abuse of discretion to deny bail pending appeal in the absence of circumstanced or additional terms in the probation order indicating the inadvisability of bail.  Re McCauglan (1956, 3d Dist) 142 CA2d 690, 298 P2d 871.

A defendant may be entitled “almost as a matter of right” to bail after conviction and on appeal in a felony case where probation has been granted on the condition of serving a sentence such as imposed in a misdemeanor case.  Re Torres (1947) 80 CA2d 579, 182 P2d 573 (treating denial of bail by trial court as abuse of discretion).

[66] Ex parte Hoge (1874) 48 C 3; Ex parte Smallman (1879) 54 C 35; People v Davis (1945) 67 CA2d 837, 155 P2d 675; Re Torres (1947) 80 CA2d 579, 182 P2d 573.

Where one convicted on a felony charge was placed on probation for a two-year period, conditioned on confinement in the county jail and payment of a fine, the length of probation and the term of imprisonment and fine being within those which could be granted in case of a misdemeanor conviction, it was an abuse of discretion by the trial court to deny admission to bail pending aeal.  Re Torres (1947) 80 CA2d 579, 182 P2d 573.  –

TEMPORARY DETENTION

20 Cal Jur 3d (Rev) P410

Summary

There is a well-settled distinction in law between an arrest and a detention; a detention is a lesser intrusion on a person’s liberty than an arrest, and consists of briefly stoing a person for questioning or other limited investigation (§ 2491).  In order for a detention to be reasonable under the Fourth Amendment, the officer must have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity (§ 2492).  If a peace officer had reasonable cause to believe that a person has unlawful possession of a firearm or other deadly weapon, the peace officer may detain that person to determine whether a crime relating to firearms or deadly weapons has been committed (§ 2493). 

§ 2491 In general; definitions and distinctions

For purposes of Fourth Amendment analysis, there are basically three different categories or level of police “contracts” or “interactions” with individuals, ranging from the least to the most intrusive.  First, there are “consensual encounters,” which are those police-individual interactions which result in no restraining of an individual’s liberty whatsoever, i.e., no “seizure,” however minimal, and which may be properly initiated by police officers, even if they lack any “objective justification.”  Second, there are “detentions,” seizures of an individual which are strictly limited in duration, scope, and purpose, and which may be undertaken by the police if there is an articulable suspicion that a person has committed or is about to commit a crime.  Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime [38].  An initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention, within the meaning of the Fourth Amendment, if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave [39].

The distinction in law between an arrest and a detention is well-settled [40].  A detention is a lesser intrusion on a persons liberty than an arrest [41].

A detention occurs whenever a police officer accosts an individual and restrains his freedom to walk away, or when there is an assertion of authority such as when a citizen is aroached and questioned, or when an officer stops an individual because he suspects that the individual may be personally involved in some criminal activity [42].  The purpose of temporary detention for questioning is to enable law enforcement officers to determine whether to make and arrest, to investigate further, or to take no action [43].  In detaining a person, a police officer is not restricted to mere questioning but may conduct other limited investigation, and in that regard reasonable latitude should be allowed police in the use of acceptable procedures for the investigation of crime and the maintenance of peace in the community [44].  As part of a lawful detention, a police officer may require a suspect to alight from a vehicle where the officer is concerned for his own safety [45].  There is no requirement that a suspect consent to a police interview, nor does a suspect possess the right to resist a lawful detention [46].  However, detention of a suspect becomes illegal when it extends beyond the time reasonably necessary under the circumstances for the police to wind up their investigation [47].

[38] Wilson v Superior Court (1983) 34 C3d 777, 195 Cal Rptr 671, 670 P2d 325, cert den (US) 80 L Ed 2d 474, 104 S Ct 1929.

Probable cause is required to stop a robbery suspect on a public street, handcuff him, and place him in the back of a patrol car. This is a significant intrusion, and the functional equivalent of an arrest.  People v Ford (1984, 5th Dist) 150 CA 3d 687, 198 Cal Rptr 80.

[41]…..

A temporary detention may be akin to an arrest inasmuch as during the time of such detention, the person detained, if he is physically deprived of his freedom of action in any significant way, may be considered to be in custody.  Call V United States (1969, CA9 Cal) 417 F3d 462.

As to the stoing of a motorist for a traffic violation as detention or arrest see § 1674.

[46]  People v. Superior Court of Los Angeles County (1976, 2d Dist) 65 CA3d 511, 135 Cal Rptr 306.

[47]  People v. Paz (1981, 4th Dist) 118 CA3d 332, 173 Cal Rptr 272.

An investigatory detention exceeds constitutional bounds when extended beyond what is reasonably necessary under the circumstances which made its initiation permissible.  People v. De La Cruz (1984, 5th Dist) 153 CA3d 180, 200 Cal Rptr 149, op withdrawn by order of ct.

Forms: Jury instruction as to detention of excessive duration, 3 California Criminal Forms & Instructions § 44:15

§ 2492. Determination of validity

If an individual is stoed or detained by the police because the officer suspects the person may be personally involved in some criminal activity, that person’s Fourth Amendment rights are implicated and he is entitled to the safeguards of rules requiring the officer, before he is justified in stoing or detaining, to objectively suspect that some activity relating to crime has taken place or is occurring or about to occur, and the person detained is involved in that activity.  Similar safeguards are not required if the officer acts for other proper reasons [51].  Roadside questioning of a motorist detained pursuant to a routine traffic stop constitutes a seizure, within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief.  Circumstances short of probable cause to make an arrest may justify a police officer stoing and briefly detaining a person for questioning or other limited investigation [52]; but in order for such a seizure of a person to be reasonable under the Fourth Amendment, the officer must have a reasonable suspicion, base on objective facts, that the individual is involved in criminal activity [53].  While an arrest requires probable cause to believe a specific crime has been committed [54], a detention requires a lesser showing of probable cause to believe nonspecific criminal activity is afoot [55]

The applicable test for determining the validity of the temporary detention of a suspect by a police officer is to inquire whether the circumstances are such as to indicate to a reasonable person in a like position that such a course is necessary to the proper discharge of the officer’s duties, and the inquiry must be based on an objective perception of events rather than the subjective feelings of the detaining officer [56].  A police officer’s detention of a person, based on a mere hunch, is unlawful even thought the officer may have acted in good faith; there must be a rational suspicion by the officer that some activity out of the ordinary is taking place or has taken place, some indication to connect the person under suspicion with the unusual activity, and some suggestion that the activity is related to crime [57].  Before an officer detains an individual for questioning by means of physical force or a show of authority, he must be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonable warrant that intrusion [58].

… As with all intrusions without a warrant, the burden lies with the state to justify a detention.

A police officer may detain a person for investigation or questioning on the basis of information received through “official channels [61]”.  However, if the detaining officer himself does not have personal knowledge of facts justifying the detention, but acts solely on the basis of information or discretion given him through police channels, the prosecution must establish in court, when challenged, evidence showing the officer who originally furnished the information had probable cause to believe the suspect had committed a felony, or, at the very least, that such officer was in possession of facts amounting to circumstances short of probable cause which would have justified him to personally make the detention….   The validity of a temporary detention by a police officer must be tested by the knowledge that the officer had at the time.

[51]  Terry v Ohio (1968) 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868; Re C. (1978) 21 C3d 888, 148 Cal Rptr 366, 582 P2d 957; People v Bower (1979) 24 C3d 638, 156 Cal Rptr 856, 597 P2d 115 (not followed on another point, People v Ramirez (1st Dist) 152 CA3d 1134, 200 Cal Rptr 103, op withdrawn by order of ct); Santos v Superior Court (1984, 1sr Dist) 154 CA3d 1178, 202 Cal Rptr 6.

Just as a search that is reasonable at its inception may violate the Fourth Amendment, by virtue of its intolerable intensity and scope, so may an investigatory detention exceed constitution bounds when extended beyond what is reasonably necessary under the circumstanced that made its initiation permissible.  Willett v Superior Court of San Diego County (1969, 46th Dist) 2 CA3d 555, 83 Cal Rptr 22.

As to constitutional requirement generally see § 2455

Law Reviews: License check stops and the Fourth Amendment, 68 CLR 1167; Nonarrest automobile stops; unconstitutional seizures of person 25 Stan LR 865.

[53]  Brown v Texas (1979) 443 US 47, 61 L Ed 2d 357, 99 S Ct 2637; People v Aldridge (1984) 35 C3d 473, 198 Cal Rptr 538, 674 P2d 240.

Defendant’s detention was unlawful where it rested on the police officer’s suspicion that defendant and his comrades were violating a city ordinance making it unlawful for a minor “to loiter, idle, wander, and stroll, or play in or upon the public streets” and other public places between 10 PM and 5 AM, and where defendant’s automobile, when observed by the officer at about 2 AM, was proceeding at a lawful speed without any suspicious behavior, since the officer lacked any objectively reasonable basis for suspecting that defendant or his passengers were violating the prohibitory language of the curfew ordinance.  People v Teresinski (1982) 30 C3d 822, 180 Cal Rptr 617, 640 P2d 753.

The mere act of turning one’s back on a police officer, even though, to the officer, the action seems to be a “nervous” one, is not sufficient to justify detention by the police.  People v Rosenfeld (1970, 2d Dist) 16 CA3d 619, 94 Cal Rptr 380.

When a uniformed officer aroaches a citizen and “requests” he accompany him, even a short distance, for questioning, there is some infringement on personal liberty, and such activity, if conducted on the street and with no objective facts to justify it, is not permissible.  People v. Botos (1972, 4th Dist) 30 CA3d 326, 106 Cal Rptr 304.

Forms: Jury instruction as to detention at nighttime, 3 California Criminal Forms & Instructions § 44:14.

[57]..

To justify even a limited detention as a necessary course in the proper discharge of a law enforcement officer’s duties, there must exist some suspicious or unusual circumstances which are sufficiently distinguishable from innocent activity so that taken together with the rational inferences to be draw from the facts, they would reasonable warrant the conclusion that criminal activity is afoot.  Restani v Superior Court of Lake County (1970, 1st Dist) 13 CA3d 189, 91 Cal Rptr 429.

[58] LONG.

[62]  Restani v Superior Court of Lake County (1970, 1st Dist) 13 CA3d 189, 91 Cal Rptr 429; People v Collin (1973, 1st Dist) 35 CA3d 416, 110 Cal Rptr 869.

To justify temporary detention, the information upon which the officer relies need not be of the quality required for probable cause to arrest and

§ 2493 Firearms or weapons offense

…. Pro purposes of this statute, “reasonable cause to detain” requires that the circumstances known or aarent to the officer must include specific and articulable facts causing him to suspect that some offense relating to firearms or deadly weapons has taken place or is occurring or is about to occur and that the person he intends to detain is involved in that offense;

CITATION FOR INFRACTION OR MISDEMEANOR

§ 2495 In general

.. The arrestee may be taken into custody only if he refuses to present such identification, or refuses to sign such a written promise.

…. When a person signs a written promise to aear at the time and place specified and has not posted bail, the magistrate must issue an have delivered for execution a warrant for his arrest within twenty days after his failure to aear as promised [77].  No warrant may issue on the charge for the arrest of a person who has given a written promise to aear in court, unless he has violated that promise or has failed to deposit bail, to aear for arraignment, trial, or judgment, or to comply with the terms and provisions of the judgment, as required by law [78].

[77] Deering’s Pen C § 853.8 (referring to bail provided in Pen C § 853.6)

[78]  Deering’s Pen C § 853.6(f)

§ 2496 Citation procedure

Unless waved by arrestee, the time specified in the notice to aear must be at least ten days after arrest..….

.after signing promise to aear. Thereupon, the arresting officer must immediately release the arrestee form custody [Deering’s Pen C § 853.6(d)]

CUSTODY AND DISPOSITION OR ARRESTEE OR PRISONER

Summary

..An arrested person must in all cases be taken before a magistrate without unnecessary delay, and in any event, within two days after his arrest, excluding Sundays and holidays (§ 2500).  Immediately upon being booked, and except where physically impossible, no lather than three hours after arrest, an arrested person has the right to make at least two completed telephone calls.

.. The Penal Code provides a procedure whereby a person who has been arrested or detained and is factually innocent may request a law enforcement agency or the court to provide for the sealing and destruction of the arrest record (§2504)

§ 2497 In general

..

An officer making an arrest in the county of his jurisdiction for an offense triable in the superior court of another county, under a warrant issued upon a complaint filed in his county, must take the person arrested before the nearest and most accessible magistrate of the county in which the offense is triable, and must deliver to the magistrate the complaint and the warrant, with his return indorsed thereon…

Any physician and surgeon, including a psychiatrist, licensed to practice in this state, who is employed by the prisoner or his attorney to assist in the preparation of defense, must be permitted to visit the prisoner while he is in custody.

§ 2498 Felony arrest

… such law enforcement agency must take custody of the defendant within five days in the county in which he was arrested……

§ Misdemeanor arrest in another county

If the offense charged is a misdemeanor, and the defendant is arrested in another county, the officer must, without unnecessary delay, inform the defendant in writing of his right to be taken before a magistrate in that county, note on the warrant that he has so informed the defendant, and, on being required by the defendant, take him before a magistrate in that county, who must admit him to bail in the amount specified in the endorsement on the warrant of arrest, or if no bail is specified, the magistrate may set bail; if the defendant is demitted to bail the magistrate must direct the defendant to aear before th3e court of magistrate who issued the warrant.  If bail is given, the magistrate must indorse thereon a memorandum of his order for the appearance of the defendant [Deerings Pen C § 822 (referring to bail provided in Pen C § 815a) see also §§2495, 2496 for misdemeanors and § 2579 for bail]

… five days..

§ 2500 Duty to bring prisoner before magistrate without unnecessary delay

An arrested person must in all cases be taken before a magistrate without unnecessary delay, and, in the event, within two days after his arrest, excluding Sundays and holidays.  However, if the prescribed two days expire at a time when the court in which the magistrate is sitting is not in session, such time is extended to include the duration of the next regular court session on the judicial day immediately following [5].

When an arrest is made without a warrant by a peace officer of a private person, the arrested person, if not otherwise released, must be taken without unnecessary delay to the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person must be laid before such magistrate [6].  The tow-day limit aearing in the first-mentioned statute [7] has been incorporated by construction in the latter statute [8] as a maximum time [9].  However, a delay of even a few hours may be unreasonable [10].

Another section of the code provides that a private individual, arresting another for the commission of a public offense, must without unnecessary delay take the person arrested before a magistrate [11] or deliver him to a peace officer [12].  A delay of even a few hours may be unreasonable under this statute [13].

Every public officer or other person, having arrested any person on a criminal charge, who willfully delays to take the arrestee before a magistrate having jurisdiction, to take his examination, is guilty of a misdemeanor [14].

To warrant reversal for failure to bring a defendant before the magistrate within the prescribed time, the delay must materially affect the outcome of the trial [15].

Subsequent unreasonable delay in taking an arrested person before a magistrate will not affect the legality of a lawful arrest [16].

[5] Cal Const Art 1 § 14 (felony); Deering’s Pen C § 825.

Pen C § 825 does not authorize a two-day detention in all cases, but places a limit on what may be considered a necessary delay and detention of less than two days, if unreasonable under the circumstances, is a violation of the statute. Dragna v White (1955) 45 C2d 496, 289 P2d 428.

Unnecessary delay in arraignment violates a fundamental right of the arrested person and is in disobedience of the law.  Such conduct by the police is patently illegal and its illegality is not lessened by the fact that similar conduct is not unusual of that such delays make the work of the police and the district attorney easier.  People v. Pettingill (1978) 21 C3d 231, 145 Cal Rptr 861, 578 P2d 108.

Under certain circumstances even a delay in bringing a defendant before a magistrate which is within the statutory maximum (Pen C § 825) may be patently unreasonable.  People v Lee (1970, 4th Dist) 3 CA3d 514, 83 Cal Rptr 715.

Pen C § 825 is applicable to parolees charged with crimes.  However, a delay in arraigning a defendant did not violate Pen C § 825, where defendant would have been released by the police prior to expiration of the time limit if his parole officer had not placed a parole detention “hold” on him.  When the detention hold was placed on defendant, he was no longer being detained prior to arraignment, and Pen C § 825 ceased to operate.  Nevertheless, the extended detention of defendant pursuant to the old without preliminary hearing or inquiry was illegal.  People v Gordon (1978, 2d Dist) 84 CA3d 913, 149 Cal Rptr 91.

A defendant who was arraigned 45 hours after his arrest on burglary charges, during which time he made statement which were inconsistent with his trial testimony, met his burden of establishing the unreasonableness of the delay under Cal Const Art I § 14 and Pen C § 825, where all of the evidence linking defendant to the burglary was in the possession of the sheriff’s office at the time of his arrest.  The fact that the detective to whom the case was assigned was on vacation did not provide sufficient justification for the delay.  People v. Cook (1982, 4th Dist) 135 CA3d 785, 185 Cal Rptr 576.

Annotations:  .. Delay in taking before magistrate or denial of opportunity to give bail as suorting action for false imprisonment, 98 ALR2d 2966.

Law Reviews: Holding prisoner incommunicado, 43 CLR 401; Delay in bringing prisoner before magistrate, 39 CLR 96, 113.

[6] Deerings’s Pen C § 849(a)

A person who is already in custody cannot logically be arrested, as arrest means taking a person into custody; thus there was no need to arrest a person .. Re Mugica (1968) 69 C2d 516, 72 Cal Rptr 645, 446 P2d 525.

[7] Deerings’s Pen C § 825

[8] Deerings’s Pen C § 849(a)

[9] People v Zammora (1944) 66 CA2d 166, 152 P2d 180 (Pen C § 825 defines “unnecessary delay” in Pen C § 849 as meaing in any event within two days after the arrest); People v Sewell (1950) 95 CA2d 850, 214 P2d 113, cert den 339 US 958, 94 L Ed 1369, 70 S Ct 975 (referring in the two-days’ maximum time in determining that the defendant was timely brought before the court).

[10]  Peopoe v Haydel (1974) 12 C3d 190, 115 Cal Rptr 394, 524 P2d 866.

[14] As to delay in presentment before magistrate as false imprisonment, see Assault and Other Willful Torts § 63

[15]  Re Mugica (1968) 69 C2d 516, 72 Cal Rptr 645, 446 P2d 525.

A violation of defendant’s right to be taken before a magistrate within the time specified by law does not require reversal unless he shows that through such wrongful conduct he was deprived of a fair trial or otherwise suffered prejudice as a result. People v Combes (1961) 56 C2d 135, 14 Cal Rptr 4, 363 P2d 4; People v Lane (1961) 56 C2d 773, 16 Cal Rptr 801, 366 P2d 57.

§ 2504. Sealing and expungement of records

The Penal Code provides a procedure whereby a person who has been arrested or detained and is factually innocent may request law enforcement agency or the court to provide for the sealing and destruction of the arrest record [38].

[38]  Deering’s Pen C § 851.8, 851.85 (latter statute is operative only if former statute is repealed, and it covers a narrower range of circumstances).

Pen C § 851.8 does not empower a court to seal records in matters that are dismissed in the furtherance of justice (Pen C § 1385).  The purpose of Pen C § 851.8, is to benefit DEFENDANTS who, after presentation of evidence, are found not to have committed a crime.  People v. Glimps (1979, 2d Dist) 92 CA3d 315, 155 Cal Rptr 230.

Pen C § 851.8 was intended as a compromise between the valid public purposes that arrest records may serve and a recognition that innocent persons had suffered adverse consequences and were entitled to relief.  People v White (1978) 77 CA3d Su 17, 144 Cal Rptr 128.

Annotations:  Right of exonerated arrestee to have fingerprints, photographs, or other criminal identification or arrest records expunged or restricted, 46 ALR3d 900; Consideration of arrest record as unlawful employment practice violative of Titel VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.), 33 ALR Fed 263.

Law Reviews: Arrest record expungement in California: the polishing of sterling, 9 USF LR 299.

Ops Att Gen: 65 Ops Att Gen 563 (a law enforcement agency may lawfully refuse to furnish a copy of an arrest or compliant report requ3ested by one who has provided information contained in the report; however, the agency must make public certain information contained in such reports).

Forms: Letter requesting criminal record, 2 California Criminal Forms & Instructions § 36:1; Destruction of record of marijuana conviction, …; Destruction of law enforcement agency record of arrest, 2 California Criminal Forms & Instructions § 36:3; Petition to seal and destroy record of arrest, 2 California Criminal Forms & Instructions § 36:4; Declaration in suort of petition to seal and destroy record of arrest, 2 California Criminal Forms & Instructions § 36:6; Order to seal and destroy record of arrest, 2 California Criminal Forms & Instructions § 36:7; Petition to seal and destroy record of dismissal, 2 California Criminal Forms & Instructions § 36:8; Declaration in suort of petition to seal and destroy record of dismissal, 2 California Criminal Forms & Instructions § 36:9; Points and authorities in suort of petition to seal and destroy record of dismissal, 2 California Criminal Forms & Instructions § 36:10; Petition to expunge misdemeanor conviction, 2 California Criminal Forms & Instructions § 36:13; Order to expunge misdemeanor conviction, 2 California Criminal Forms & Instructions § 36:14; Petition to expunge felony conviction, 2 California Criminal Forms & Instructions § 36:15; Order to expunge felony conviction, 2 California Criminal Forms & Instructions § 36:16; Interview sheet for certificate of rehabilitation, 2 California Criminal Forms & Instructions § 36:22; Petition for certificate of rehabilitation, 2 California Criminal Forms & Instructions § 36:23; Notice of filing petition for certificate o rehabilitation, … Cert or rehabilitation..

SEARCH AND SEIZURE

A. Generally; Constitutional Standards §§ 2505-2510

Summary.

Both federal and state constitutions guarantee the right of every person to be secure against unreasonable searches and seizures, and provide that no search warrant may issue except on probable cause, suorted by oath or affirmation, particularly describing the place to be searched and the persons or things to be seized (§2505).  The primary purpose of the constitutional guarantees relating to searches and seizures is to prevent unreasonable invasion of the security of People, in their persons, houses, papers and effects (§ 2506).  The constitutional guarantees prohibiting unreasonable searches and seizures and legislation regulating the process of search and seizure must be liberally construed to carry out the purpose and to safeguard the right of privacy, in such a way at to protect both the individual rights guaranteed by the constitutional provisions and the interests of society in the suppression of crime (§ 2507).  The immunity embodied in the constitution guaranties with respect to searches and seizures is granted, not against all searches and seizures, but only against those that are “unreasonable” (§ 2508).  Reasonable or probable cause to suspect or believe that contraband is present or that a crime has been committed or attempted must exist to justify a search pursuant to a search warrant or to a lawful arrest (§ 2509).  The Fourth Amendment protects people, not places, and wherever an individual may harbor a reasonable expectation of privacy, he is entitled to be freed from unreasonable governmental intrusion (§ 2510)

California Constitution, Article I §§ 1, 2, 4, 13, 15, 28(d)

US Constitution, First Amendment, Fourth Amendment, Fourteenth Amendment.

§ 2505 In general

The federal and state constitutions both guarantee the right of the People to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, and provide that no warrant may issue, but on probable cause, suorted by oath or affirmation, particularly describing the place to be searched and the persons or things to be seized [40].  The prohibition against unreasonable searches and seizures in the Fourth Amendment of the United States Constitution has been made applicable to state action as part of due process guaranteed by the Fourteenth Amendment [41], and the reasonableness of a state search and seizure is determined by the standard established by the Fourth Amendment and the decisions of the United States Supreme Court in alying that amendment [42].  Similarly, the standard for obtaining a search warrant is the same under the Fourth and Fourteenth Amendments [43].  Nevertheless, not all …

..

In analyzing the legality of searches and seizures, constitutional provisions in addition to the search and seizure provisions should be considered.  Thus, a particular search or seizure may violate the constitutional right to privacy [46], freedom of speech and of the press [47], freedom of religion [48], due process of law [49], or the prohibition against self-incrimination [50].

[40]  US Const Fourth Amendment; Cal Const Art I § 13

The sanctity of a private home is not only guaranteed by the federal and state constitutions, but is traditional in our Anglo-Saxon heritage.  “A man’s home is his castle” is more than an empty phrase.  People v Privett (1961) 55 C2d 698, 12 Cal Rptr 874, 361 P2d 602.

As to  standing to challenge the legality of search or seizure see § 3181.

As to reasonable or probable cause, see § 2509.

As to the necessity of an affidavit, see §§ 2523 et seq.

As to the required particularity in describing a place or person to be searched or seized, see § 2529.

As to remedies generally, see §§ 2572 et seq.

Annotations: comment Note. - Federal Constitution as affecting admissibility of evidence obtained by illegal search and seizure, 84 ALR2d 959.

Law Reviews: Towards workable rules of search and seizure-amicus curiae brief, 50 CLR 421; Search and seizure: a no-man’s land in the criminal law, 49 CLR 474; Unreasonable search and seizure in California, 48 CLR 498; Nith Circuit survey …

[41]  Ma v Ohio (1916) 367 US 643, 6 L Ed 2d 1081, 81 S Ct 1684, 16 Ohio Ops 2d 384, 86 Ohio L Abs 513, 84 ALR2d 933, reh den 368 US 871, 7 L Ed 2d72, 82 S Ct 23; Stanford v Texas (1965)  379 US 476, 13 L Ed 2d 431, 85 S Ct 506, reh den 380 US 926, 13 L Ed 2d 813, 85 S Ct 879; Cooper v California (1967) 386 US 58, 17 L Ed 2d 730, 87 S Ct 788, reh den 386 US 988, 18 L Ed 2d 243, 87 S Ct 1283; People v Castro (1967, 2d Dist) 249 CA2d 168, 57 Cal Rptr 108.

No statute regardless of its purpose, or entitlement, may authorize a police search or seizure in contravention of the Fourth Amendment.  Skinner v Superior Court of Santa Clara County (1977, 1st Dist) 69 CA3d 183, 137 Cal Rptr 851.

[42] Ker v California (1963) 374 US 23, 10 L Ed 2d 726, 83 S Ct 1623, 24 Ohio Ops 2d 201.

Questions regarding the reasonableness of searches under US Const Fourth Amendment are controlled by federal law in state as well as federal courts.  People v Paxton (1967, 2d Dist) 255 CA2d 62, 62 Cal Rptr 770 (disaroved on another point People v Tribble, 4 C3d 826, 94 Cal Rptr 613, 484 P2d 589).

[46] Cal Const Art I § 1.

Constitutional protection of privacy is directed toward (1) “government snooping” and secret gathering of personal information, (2) the overbroad collection and retention of unnecessary personal information by government and business interests, (3) the improper use of information properly obtained for a specific purpose, and (4) the lack of a reasonable check on the accuracy of existing records.  The constitutional provision does not purport to prohibit all incursion into individual privacy, but intends that any such intervention must be justified by a compelling interest.  The provision is intended to be self-executing, i.e., the provision creates a legal and enforceable right of privacy for every Californian.  Board of Medial Quality Assur. V Gherardini (1979, 4th Dist) 93 CA3d 669, 156 Cal Rptr 55 (trial court improperly issued order calling for production of hospital records and documents).

As to protection of a reasonable expectation of privacy under constitutional provisions relating to search and seizure see § 2510

As to right of privacy generally see Constitutional Law § 234

[49]

As to the use of force or brutality in obtaining evidence from person of an accused as violation of due process see § 2228.

See Const Law §342

§ 2506 Nature and purpose

The primary purpose of the constitutional guarantees relating to searches and seizures is to prevent unreasonable invasion of the security of the People in their persons, houses, papers and effects [52].  The privacy and security of individuals is safeguarded against arbitrary invasions by governmental officers [53].   Since the purpose is to protect the citizen against unreasonable use of governmental force [54], and not to shield criminals, it follows that the constitutional guarantees are not violated when a reasonable search or seizure is made either as incidental to a lawful arrest [55], or pursuant to a valid warrant [56].

[52]  Steagald v United states (1981) 451 US 204, 68 L Ed 2d 38, 101 S Ct 1642, on remand..….(the Fourth Amendment is designed to prevent, not simply redress, unlawful police action); People v Maddox (1956) 46 C2d 301, 294 P2d 6, cert den 352 US 858, 1 L Ed 2d 65, 77 S Ct 81.

A random police search is the precise invasion of privacy that the Fourth Amendment was intended to prohibit.  Mozzetti v Superior Court of Sacramento County (1971) 4 C3d 699, 94 Cal Rptr 412, 484 P2d 84.

[53]  People v Tremayne (1971, 4th Dest) 20 CA3d 1006, 98 Cal Rptr 193; Peole v Smith (1977, 5th Dist) 67 CA3d 638, 136 Cal Rptr 764.

The Fourth Amendment and Cal Const Art I § 13, prohibiting unreasonable searches, embody a variety of values, primary among which is the protection of privacy.  People v Brown (1979, 3d Dist) 88 CA3d 283, 151 Cal Rptr 749 (disaroved on other grounds Peoplev Laiwa, 34 C3d 711, 195 Cal Rptr 503, 669 P2d 1278).

Law Reviews: Toward the preservation of personal privacy: Chief Justice Wright’s opinion of search and seizure and the right of privacy, 4 Hast Con LQ 723.

[54] People v Cahan (1955) 44 C2d 434, 282 P2d 905, 50 ALR2d 513.

§ 2507. Construction

It is a fundamental principle of law that constitutional provisions should receive liberal interpretation in favor of the citizen, especially in regard to those matters designed to safeguard liberty and security of person and property [57].  Frequent examples of the alication of the rule have arisen in cases dealing with search and seizure; and, in accord with this primary canon of constitutional law, the courts have repeatedly stated that the constitutional guaranties prohibiting unreasonable searches and seizures and legislation regulating the process of search and seizure are to be liberally construed to carry out their purposes and to safeguard the right to privacy, in such a way as to protect both the individual rights guaranteed by the constitutional provisions and the interests of society in the suppression of crime [58].  It is also said that the provisions prohibiting unreasonable searches and seizures should receive a liberal construction so as to prevent stealthy encroachment of gradual depreciation of the rights secured by them by imperceptible practice of courts or by well-intentioned but mistakenly zealous officers [59]. 

….

What constitutes a reasonable search cannot be summarized in any rigid formula, or determined by any single standard or fixed touchstone, but depending on all the circumstances of each case [61].  In determining under what circumstances a particular search will be allowed, governmental interests must be weighed against the citizen’s right to privacy, since the constitutional provisions prohibit only unreasonable searches and seizures [62].  In any event, the determination cannot ordinarily be left to the police.  In the absence of some grave emergency the constitutional guarantees interpose a magistrate between the citizen ant the police, so that an objective mind may weigh the need to invade the privacy of the individual in order to enforce the law [63]

[57]  see const law § 40

[58]  People v Chan (1955) 44 C2d 434, 282 P2d 905, 50 ALR2d 513.

Fourth Amendment protections are so fundamental that they are to be jealously guarded and liberally construed.  Blair v Pitchess (1971) 5 C3d 258, 96 Cal Rptr 42, 486 P2d 1242, 45 ALR3d 1206.

A probationer enjoys the protection of constitutions guarantees against unreasonable searches and seizures of his home, absent some other legal basis for the search.  People v Jasso (1969, 2d Dist) 2 CA3d 955, 82 Cal Rptr 229.

Because the proceeding by a search warrant is a “drastic one,” whose abuse led to the adoption of the Fourth Amendment itself, legislation regulating the process must be liberally construed in favor of the individual affected, and every constitutional and statutory requirement must be fully met, including all formalities required by statue, before a valid search warrant may issue.  Bowyer v Superior Court of Santa Cruz County (1974, 1sd Dist) 37 CA3d 165, 112 Cal Rptr 266.

[59]  Wirin v Horral (1948) 85 CA2d 487, 193 P2d 470.

All owe the duty of effective enforcement of the constitutional guaranty against unreasonable searches and seizures lest there be impairment of the rights of the protection of which it was adopted. Re Alication of Schaefer (1933) 134 CA 498, 25 P2d 490

[63]

An intrusion by the state into the privacy of the home for any purpose is one of the most awesome incursions of police power into the life of the individual.  Unrestricted authority in this area is anathema to the system of checks envisioned by the Constitution.  It is essential that the dispassionate judgment of a magistrate, an official dissociated from the competitive enterprise of ferreting out crime be interposed between the state and the citizen at this critical juncture.  The frightening experiences of certain foreign nations with the unexpected invasion of private homes by uniformed authority to seize individuals therein , often in the dead of night, is too fresh in memory to permit this portentous power to be left to the uninhibited discretion of the police alone.   Lohman v Superior Court of San Diego County (1977,4th Dist) 69 CA3d 894, 138 Cal Rptr 403.

As to reasonable or probable cause requirement see § 2509

§ 2508. Scope

The immunity embodied in constitutional guarantees with respect to searches and seizures is granted, not against all searches and seizures, but only against those that are “unreasonable.” [64]  All unreasonable searches and seizures are prohibited, whether conducted pursuant to a warrant or not [65].

The constitutional provisions embrace seizures of the person as well as seizures of property [66]; and extend to civil, as well as criminal, matters [67].  The constitutional provisions are applicable when the police make a through investigation into the private property of an individual, even though they are not searching for the express purpose of finding evidence of crime [68]. The constitutional provisions are not limited to persons having title to the searched premises [69].  The constitutions protection against unreasonable searches and seizures has been alied to private dwellings [70], businesses and commercial premises [71], garages [72], a locker used by a patron in a bowling alley [73], private areas within public places, such as a toilet stall offered to the public for private, albeit transient individual use [74], vehicles [75], and even, on occasion, open land [76]. 

As to such searches and seizures as are not authorized by law or consented to by the person concerned, the constitutional provisions relating to unreasonable searches and seizures make no distinction between the guilty and the innocent.  It would be impossible to protect the rights of the innocent if the police were permitted to justify unreasonable searches and seizures on the ground that they assumed that their victims were criminals [89]

Since the guilty and the innocent alike are included within the guaranty that in no case may the right of the People to be secure against unreasonable searches and seizures be violated, such violations cannot be justified by any supposed necessity of bringing criminal to justice.  In face, the constitutional provisions were enacted on the premise that it is better for a few criminals to escape punishment than for society generally to be subject to the demoralizing anxiety generated by arbitrary and unreasonable searches and seizures [90].

[65]  People v Scott (1978) 21 C3d 284, 145 Cal Rptr 876, 578 P2d 123.

Both the Fourth Amendment and Cal Const Art I § 13 protect against an unreasonable seizure as well as an unreasonable search People v Superior Court of San Bernardino County (1970, 4th Dist) 9 CA3d 203, 88 Cal Rptr 21.

As to searches without a warrant see §§ 2534 et seq;

[68]  People v Smith (1977, 5ht Dist) 67 CA3d 638, 136 Cal Rptr 764.

The constitutional right of privacy of an occupant of a house against police intrusion extends to entry for purposes of investigation as well as to those for purposes of arrest.  People v Mesaris (1970, 2d Dist) 14 CA3d 71, 91 Cal Rptr 837.

As to administrative inspections see § 2551.

[70]  Guidi v Superior Court of Los Angeles County (1973) 10 C3d 1, 109 Cal Rptr 684, 513 P2d 908.

The right of a person to retreat into his own home and there be free from unreasonable government intrusion is at the very core of the Fourth Amendment.  Payton v New York (1980) 445 US 573, 63 L Ed 2d 639, 100 S Ct 1371, on remand 51 NY2d 169, 433 NYS2d 61, 412 NE2d 1288.

[72].  People v Medina (1972) 7 C3d 30, 101 Cal Rptr 521, 496 P2d 433 (the degree of intrusion of a garage is significantly less than that of a person’s house, but both are subject to Fourth Amendment protections).

[75] Because a vehicle is moveable, the opportunity to search it is fleeting, and in most instances its contents would never be found again if a law enforcement officer had to obtain a search warrant; therefore greater latitude is given to searches of vehicles without warrants than is given to the search of a home or building.  But the extend to which an officer may search a vehicle without a warrant is not without constitutional restrictions; it is government by the exigencies of the situation, and each case must be judged on its own facts.  People v Koehn (1972, 5th Dist) 25 CA3d 799, 102 Cal Rptr 102.

[76]  Phelan v Superior Court of Mariposa County (1979, 5th Dist) 90 CA3d 1005, 153 Cal Rptr 738

[89]  People v Cahan (1955) 44 C2d 434, 282 P2d 905, 50 ALR2d 513; People v Brown  (1955) 45 C2d 640, 290 P2d 528.

The Fourth Amendment forbids every search that is unreasonable and protects those suspected or known to be offenders as well as the innocent.  Ker v California (1963) 374 US 23, 10 L Ed 2d 726, 83 S Ct 1623, 24 Ohio Ops 2d 201.

[90]  People v Cahan (1955) 44C2d 434, 282 P2d 905, 50 ALR2d 513.

§ 2509.  Reasonable or probable cause

Reasonable or probable cause to suspect or believe that contraband is present or that a crime has been committed or attempted must exist to justify a search pursuant to a search warrant [91] or to a lawful arrest [92].  “Reasonable or probable cause” in connection with searches and seizures has been variously defined.  It has been stated that reasonable or probable cause is such a state of facts as would lead a person of ordinary care an prudence to believe, or to entertain an honest and strong suspicion, that the person involved is guilty of the offense charges [93].  This proposition has been stated in the disjunctive with respect to the elements of care and prudence and in the conjunctive with respect to the elements of belief and suspicion [94].  It has been stated on the one hand that belief rather than suspicion is required [95], and on the other that an honest and strong suspicion is sufficient [96].  The term “probable” has been defined as meaning having more evidence for than against, or suorted by evidence that inclines the mind to believe but leaves some room for doubt [97].  Still another vi3ew is that probable cause for arrest and search is a suspicion founded on circumstances sufficiently strong to warrant a reasonable person to believe that the suspect is guilty of the crime charged [98].  In connection with warrantless searches, it has been stated that probable cause for a search without a warrant exists when an officer is aware of facts that would lead a person of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search is in the particular place to be searched [99].  Although the law requires more than a mere furtive gesture to constitute probable cause to search [1], ….

Reasonableness is determined by balancing the need to search against the invasion which the search entails [4].  In this connection, “unreasonable” may be taken as substantially synonymous with “illegal.”…

The rule of probable cause is a practical, non technical conception affording the best compromise that has been found for accommodating the often oosing interests of protecting citizens’ privacy from rash and unreasonable interferences and giving reasonable flexibility to law enforcement.  Requiring more would unduly hamper law enforcement; to allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice [7].

.. And the mere possession of facts entitling police to a warrant to search particular premises does not justify a search of such premises without a warrant [11].

[93]  People v Kilvington (1894) 104 C 86, 37 P 799; People v Melendrez (1900) 129 C 549, 62 P 109; People v Lawrence (1957, 1st Dist) 149 CA2d 435, 308 P2d 821; People v Silvestri (1957, 1st Dist) 150 CA2d 114, 309 P2d 871; People v Dewson (1957, 1st Dist) 150 CA2d 119, 310 P2d 162; People v Morris (1962, 2d Dist) 211 CA2d 274, 27 Cal Rptr 129; People v Guy (1980, 2d Dist) 107 CA3d 593, 165 Cal Rptr 463.

Reasonable cause to conduct an investigation is not merely a subjective standard, but one that demands that the facts available to the officer at the time in question would warrant the belief of a person or reasonable caution that the action taken was appropriate.  People v Baldwin (1976, 1st Dist) 62 CA3d 727, 133 Cal Rptr 427.

[94]  Probable cause for an arrest is shown if a person of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. People v Fischer (1957) 49 C2d 442, 317 P2d 967.

[95]  Cook v Stinger Sewing Machine Co. (1934) 138 CA 418, 32 P2d 430.

[96]  People v Hu (1943) 61 CA2d 447, 143 Ped 84.

Belief however well-founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant, and such searches are unlawful notwithstanding facts unquestionably showing probable cause.  People v Landry (1969, 4th Dist)  276 CA2d 370, 80 Cal Rptr 880.

[99]

Forms: Alleging warrantless search without probable cause, 22 Am Jur P1 & Pr Froms (Rev), Searches and Seizures, Form 83.

§ 2510.  Reasonable expectation of privacy

The Fourth Amendment protects people, not places, and wherever an individual may harbor a reasonable expectation of privacy, he is entitled to be freed from unreasonable governmental intrusion [14].  The basic test as to whether there has been an unconstitutional invasion of a person’s privacy is whether he has exhibited a subjective expectation of privacy which is objectively reasonable and, if so, whether that expectation has been violated by unreasonable governmental intrusion.  Reasonableness is dependant on the totality of facts and circumstances involved in the context of a each case [15].  In the absence of a reasonable privacy expectation, it cannot be successfully claimed that an intrusion without a warrant constitutes a “search” subject to constitutional challenge [16].

In alying the reasonable expectation of privacy test, it has been held, for example, that the defendant had a reasonable expectation of privacy in his bank records, financial statements and cancelled checks [17], in letters and other sealed packages [18]; in information regarding charges made on his credit card [189]; re records of telephone calls made by an individual from his home, office [20]; or hotel room [21]; in his unlisted name; address; and telephone number [21]; in his closed storage locker located in a room in his employer’s premises to which the public was not admitted [22]; in his filed maintained by his attorney [24]; in fire-damaged premises [25]; in motel room [26]; in an enclosed backyard [27] or other outdoor enclosure [28]; in the air space above his property [29]; in a public [30] or private [31] rest room; in the trunk of an automobile [32]; and in a recessed area between the bumper and body of his automobile [33].

[14]  United States v Mendenhall (1980) 446 US 544, 64 L Ed 2d 497, 100 S Ct 1870, reh den 448 US 908, 65 L Ed 2d 1138, 100 S Ct 3051; People v Medina (1972) 7 C3d 30, 101 Cal Rptr 521, 496 P2d 433; People v Mayberry (1982) 31 C3d 335, 182 Cal Rptr 617, 644 P2d 819; Cohen v Superior Court of Los Angeles County (1970, 2d Dist) 5 CA3d 429, 85 Cal Rptr 354; People v Smith (1977, 5th Dist) 67 CA3d 638, 136 Cal Rptr 764; People v Ammons (1980, 1st Dist) 103 CA3d 20, 162 Cal Rptr 772; People v Ingram (1981, 2d Dist) 122 CA3d 673, 176 Cal Rptr 199.

An unreasonable search or seizure is basically an unwarranted invasion of the right of privacy that lies behind the constitutional guarantees prohibiting such searches and seizures.  People v Cahan (1955) 44  C2d 434, 282 P2d 905, 50 ALR2d 513; Irvine v California (1954) 347  US 128, 98 L Ed 561, 74 S Ct 381, reh den 347 US 931, 98 L Ed 1083, 74 S Ct 527.

An unreasonable search and seizure within the meaning of US Const Fourth Amendment and Cal Const At I § 13, occurs whenever a person’s reasonable expectation of privacy is violated by governmental intrusion.  In the absence of one of a number of carefully circumscribed exceptions, such a search is per se unreasonable if it is not conducted pursuant to a valid search warrant.  Cleaver v Superior Court of Alameda County (1979) 24 C3d 297, 155 Cal Rptr 559, 594 P2d 984.

[15] Katz v United States 1967) …. Very long refs…

The inquiry as to whether a person invoking the protection of the Fourth Amendment can claim a justifiable, reasonable, or a legitimate expectation of privacy that has been invaded by government action normally embraces two questions: (1) whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy, that is, whether he has shown that he seeks to preserve something as private; and (2) whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable, that is, whether the expectation, viewed objectively, is justifiable under the circumstances.  Smith v Maryland (1979) 442 US 735, 61 L Ed 2d 220, 99 S Ct 2577 (not followed People v Sporleder (Colo) 666 P2d 135) and (not followed People v Chapman, 36 C3d 98, 201 Cal Rptr 628, 678 P2d 62) and (not followed People v Corr (Colo) 682 P2d 20).

In order to be constitutionally protected, the individual must exhibit an objective, reasonable expectation of privacy with respect to thearea of search or sezure. People v St. Amour (1980, 1st Dist) 104 CA3d 886, 163 Cal Rptr 187 (disagreed with on other grounds People v Agee (3d Dist) 153 CA3d 1169, 200 Cal Rptr 827, hear grby sup ct).

[26]

A trespass committed by a police officer when he climbed out on a trellis to look into a second floor motel room through an accidental aperture in the curtains was an unreasonable government intrusion and constituted an unreasonable search, where the occupants had exhibited a reasonable expectation of privacy by drawing the curtains on the window of the room, which was located at a considerable distance from any public vantage point. Pate v Municipal Court for Modesto Judicial Deist. (1970, 5th Dist)  11 CA3d 721, 89 Cal Rptr 893.

[27]  Vidaurri v Superior Court of San Diego County (1970, 4th Dist) 13 CA3d 550, 91 Cal Rptr 704 (a person who surrounds his backyard with a fence, and limits entry with a gate, locked or unlocked, has shown a reasonable expectation of privacy for that area, and it is protected from unreasonable government intrusion or search without a warrant, unless the circumstances excuse the warrant).

Although police officer were on legitimate police business of investigating defendant’s son when they aroached defendant’s house, the officers could have determined at the front door that no one was at home.  Once this determination was made, their official business at defendant’s home ended.  By trespassing into the backyard, the surpassed what was reasonable under the circumstances, for no exigency existed to justify suspension of defendant’s Fourth Amendment rights.  The police were conducting a routine investigation, merely looking for a suspect to interview; no evidence showed that defendant’s son was dangerous or even that he was attempting to evade the law.  People v Winters (1983, 4th Dist) 149 CA3d 705, 196 Cal Rptr 918.

[32]  The trunk of an automobile is recognized as the area of a vehicle as to which there is the greatest expectation of privacy.  Independent justification is required therefore, before the trunk may be searched.  People v Superior Court of Los Angeles County (1976, 2d Dist) 63 CA3d 990, 134 Cal Rptr 174.

WHAT CONSTITUTES “SEARCH” “OR SEIZURE”

Summary

The word “search” implies some exploratory investigation, or a looking for and seeking out.  A “seizure” is an arrest or determination of an individual or a forcible dispossession of property from its owner or custodian (§ 2511).  The constitutional prohibitions against unreasonable searches and seizures are directed against governmental action; they do not aly to a search by a private citizen who is not acting as an agent of the state or other governmental unit (§2512).  The activities of the government in attaching electronic devices to intercept confidential oral or wire communications constitute a “search and seizure,” within the meaning of the Fourth Amendment, and comply with constitutional standards only when authorized by a neutral magistrate on a showing of probable cause and under precise limitations and appropriate safeguards (§2513).

§ 2511.  In general

The word “search” implies some exploratory investigation, or an invasion or quest, a looking for and seeking out [51].  It also implies a prying into hidden places for that which is concealed and that is the object searched for has been hidden or intentionally put out of the way [52].  If observations are made from a place to which the public is not expressly or implicitly invited, a search has begun [53].

A search takes place not only when the police are prying into hidden places for that which is concealed or viewing that which is intended to be private; a search can also occur whenever there is a governmental intrusion upon, or invasion of, a citizen’s personal security in an area in which he has a reasonable expectation of privacy [54]. A search occurs whenever the intrusion is for the purpose of facilitating the discovery and gathering of incriminating evidence, whether the contemplated discovery or gathering is immediate or not [55].  A search can occur while the police are engaged in an activity designed to gather evidence and instrumentalities of crime [56].

For purposed of the Fourth Amendment’s prohibition against unreasonable searches and seizures, an individual who is taken into custody by police, transported to the police station without being told he is under arrest, and detained at the police station for interrogation is “seized”.  Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person [57].  A “seizure” also refers to a forcible dispossession of property form its owner or custodian, as distinguished from a voluntary surrender [58].

The following actions, inter alia, have been held to constitute a “search”, within the meaning of the constitutional provisions: installation of a tracking device in an airplane [59], an investigating officer’s conduct in entering upon a private driveway area and looking

[51]  Bielicki v Superior Court of Los Angeles County (1962) 57 C2d 602, 21 Cal Rptr 552, 371 P2d 288; People v Edwards (1956, 1st Dist) 142 CA2d 419, 298 P2d 664; People v West (1956, 2d Dist) 144 CA2d 214, 300 P2d 729; People v Superior Court of Los Angeles County (1969, 2d Dist) 2 CA3d 131, 82 Cal Rptr 507; People v Ammons (1980, 1st Dist) 103 CA3d 20, 14 Cal Rptr 772; People v Haugland (1981, 2d Dist) 115 CA3d 248, 171 Cal Rptr 237.

[52]…. People v Superior Court of Los Angeles County (1969, 2d Dist) 2 CA3d 131, 82 Cal Rptr 507; People v Superior Court of Santa Clara County (1970, 1st Dist) 3 CA3d 636, 84 Cal Rptr 81.

[53] People v Ammons (1980, 1st Dist) 103 CA3d 20, 162 Cal Rptr 81.

 [54]  United States v Jacobsen (1984, US) 80 L Ed 2d 85, 104 S Ct 1652 (a “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed); People v Mayberry (1982) 31 C3d 335, 182 Cal Rptr 617, 644 P2d 810; People v Smith (1977, 5th Dist) 67 CA3d 638, 136 Cal Rptr 764.

[55] People v Smith (1977, 5th Dist) 67 CA3d 638, 136 Cal Rptr 764.

[56] People v Smith (1977, 5th Dist) 67 CA3d 638, 136 Cal Rptr 764.

§ 2512. Private searches

The constitutional prohibitions against unreasonable searches and seizures are directed against government action.  They do not aly to a search or seizure by a private citizen who is not acting as an agent of the state or other governmental unit [75]  The constitutional prohibitions do not aly to private individuals, unless they are participating in a joint activity or in cooperation with law enforcement officers.  However, a search conducted at the instigation of , or with the participation of, the police, is subject to the constitutional prohibitions. 

§ 2513. Interception of communications

The activities of the government in attaching an electronic listening and recording device to the outside of a telephone booth from which the suspect placed his calls constitutes a "search and seizure," within the meaning of the Fourth Amendment; the fact that electronic eavesdroing of private conversations is a search or seizure, it can comply with constitutional standards only when authorized by a neutral magistrate on a showing of probable cause and under precise limitations and appropriate safeguards [89]

 There is no unreasonable search or seizure when the police eavesdrop on a conversation between the accused and an informant by means of a radio transmitter concealed  on the informant's person [91]. 

 

Letters and sealed packages subject to first class postage in the mail are as fully guaranteed from examination and inspection, except as to their outward form and weight, as if retained by the senders in their own domiciles.  While in the mail they may be opened and examined only under warrant, issued on similar oath or affirmation particularly describing the thing to be seized, as required where papers are subject to search in one's own household.  No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and sealed packages in the mail; and all regulations adopted as to mail matter o this kind must be in subordination to the principle embodied in the Fourth Amendment of the United States Constitution [98].

[98]  Weeks v United States (1914) 232 US 383, 58 L Ed 652, 34 S Ct 341 (ovrld on other grounds Elkins v United States, 364 US 206, 4 L Ed 2d 1669, 80 S Ct 1437); Olmstead v United States (1928) 277 US 438, 72 L Ed 944, 48 S Ct 564, 66 ALR 376 (disaroved on other grounds Berger v New York, 388 US 41, 18 L Ed 2d 1040, 87 S Ct 1873, conformed to 20 NY2d 801, 284 NYS2d 456, 231 NE2d 132) and (ovrld on other grounds Katz v United States, 389 US 347, 19 L Ed 2d 576, 88 S Ct 507).

The protection against unreasonable search and seizure of one's papers or other effects, guaranteed by the Fourth Amendment, extends to their presence in the domestic mails, and first-class mail packages moving entirely within the United States cannot be seized and retained, or opened and searched, without the authority of a search warrant.

People v Superior Court of Butte County (1969, 3d Dist) 275 CA2d 489, 79 Cal Rptr 904.

As to interception of international mail see § 2553.

Annotations: Opening, search, and seizure of mail, 61 ALR2d 1282; Validity, under Fourth Amendment, of "mail cover", 57 ALR Fed 742.

2. Investigations Falling Short of Search §§ 2514-2518

 

SEARCH WARRANTS

Summary

A search warrant is a written order, signed by a magistrate, and directed to a peace officer, commanding him to search for personal property and bring it before the magistrate (§ 2591).  The police must, whenever practical, obtain advance judicial approval of searches and seizures through the warrant procedure (Sec 2520).  Absent exigent circumstances, the sufficiency and reliability of evidence used to justify a search must be made by a neutral and detached magistrate, rather than by a police officer engaged in the often competitive enterprise of ferreting out crime (§ 2521).

§ 2520. Necessity for obtaining

The police must, whenever practible, obtain advance judicial approval of searches and seizures through the warrant procedure [40].  Searches conducted outside the judicial process, witout prior approval by a judge or magistrate, are per se unreasonable under Fourth Amendment, subject only to a few specifically established and well delineated exceptions [41],  such as searches incident to a lawful arrest [42] or searches with the suspect's consent [43]. In the ordinary case, a search of private property must be both reasonable and performed pursuant to a properly issued search warrant.  The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Constitution [44].

The only legal means by which the private premises of an individual can be searched, in the absence of reasonable ground for arrest of an occupant thereof [45], is by use of a search warrant.  Neither a private person nor an officer may break in on the privacy of premises and subject its occupants to the indignity of a search for evidence of crime without a legal warrant for that purpose [46].  The possession by the police of facts constituting grounds for the issuance of a warrant to search particular premises does not validate a search made without a warrant [47.  Thus, in the absence of probable cause for the immediate arrest of an occupant, belief grounded on facts showing probable cause that on article sought as contraband is concealed in a dwelling is no justification for searching the premises without a warrant [48].  The necessity for a search warrant alies to all premises used for residential purposes, such as homes [49], apartments [50], or hotel rooms [51], although a warrant is not required to search a hotel room once it has been vacated by the tenant [52].  It also extends to other parts of premises under an occupant's control, such as a garage [53].

A secondary purpose of the constitutional provisions and implementing statutes is to arise the householder that the search has been authorized by a magistrate [56]

[40]  People v Torralva (1971, 1st Dist) 17 CA3d 686, 94 Cal Rptr 900.

A police officer who believes he has probable cause to search a house must aly for a search warrant rather than take the law into his own hands.  If a neutral and detached magistrate concurs in the officer's belief, the warrant will issue.  However, if he does not, the proper course is for the officer to renew his investigation and lawfully develop additional facts which will suort an inference of probable cause.  If he remains unable to do so, it is the state constitution itself which strikes the balance in favor of the citizen's right to privacy.  In seeking to honor reasonable expectations of privacy through alication of search and sezure law, the courts must consider the expectations of the innocent as well as the guilty.  When innocent people are subjected to illegal searches, their rights are violated even though such searches turn up no evidence of guilt.  People v Cook (1978) 22 C3d 67, 148 Cal Rptr 605, 583 P2d 130 (superseded by statute as stated in People v Truer (5th Dist) 157 CA3d 345, 203 Cal Rptr 693, hear gr by sup ct).

In the absence of one of a number of carefully circumscribed exceptions, a search is per se unreasonable if it is not conducted pursuant to a valid search warrant.  Cleaver v Superior Court of Alameda County (1979) 24 C3d 297, 155 Cal Rptr 559, 594 P2d 984.

[41] see § 2534

[42] see § 2536

[43] see § 2555

[44] People v Dalton (1979) 24 C3d 850, 157 Cal Rptr 497, 598 P2d 467, cert den 445 US 946, 63 L Ed 2d 781, 100 S Ct 1345.

As to presumptions and burden of proof see Sec 2577

[46]  Badillo v Superior Court of San Francisco (1956) 46 C2d 269, 294 P2d 23.

Forms: Alleging illegal warrantelss search by state official, 22 Am Jur P1 & Pr Forms (Rev), Searches and Seizures, Form 81; Alleging illegal warranteless search by federal agents, 22 Am Jur P1 & Pr Forms (Rev) Searches and Seizures, Form 82.

[47]  Agnello v United States (1925) 269 US 20, 70 L Ed 145, 46 S Ct 4, 51 ALR 409 (ovrld on other grounds United States v Havens, 446 US 620, 64 L Ed 2d 559, 100 S Ct 1912, 6 Fed Rules Evid Serv 1, reh den 448 US 911, 65 L Ed 2d 1172, 101 S Ct 25 and on remand (CA5 Fla) 625 F2d 1311, cert den 450 US 995, 68 L Ed 2d 195, 101 S Ct 1697); Marron v United States (1925, CA9 Cal) 8 F2d 251.

Belief grounded on facts unquestionably showing probable cause that an article subject to seizure is concealed in a dwelling is no justification for search without a warrant. Bell v United States (1925, CA9 Cal) 9 F2d 820; United States v Baldocci (1930, DC Cal) 42 F2d 567.

[48] People v Fein (1971) 4 C3d 747, 94 Cal Rptr 607, 484 P2d 583; bell v United States (1925, CA9 Cal) 9 F2d 820; United States v Baldocci (1930, DC Cal) 42 F2d 567.

[49]  People v Cahan (1955) 44 C2d 434, 282 Ped 905, 50 ALR2d 513.

Annotations: Premises temporarily unoccupied as dwelling within provision forbidding unreasonable searches of dwellings, 33 ALR2d 1430.

[53]  People v Dixon (1956) 46 C2d 456, 296 P2d 557.

Ops Atty Gen: 24 Ops Atty Gen 95, 100 (the right to be free from unreasonable search and seizure extends to a place of business, an office a hotel room or a garage, though there are indications that the home may be entitled to a higher degree of sanctity than an office of place of business).

§ 2521.  Issuance by neutral and detached magistrate.

Federal and state constitutional provisions [54] require that decisions about the sufficiency and reliability of evidence used to justify a search be made by a neutral and detached magistrate, rather than by a police officer engaged in the often competitive enterprise of ferreting out crime.   Absent exigent circumstances, the magistrate, rather than a police officer, must make the decision that probable cause exists to belive that a person or object to be seized is within a particual place.  The magistrate must judge for himself the persuasivenss of the facts relied on by a complaining officer to show probable cause for the warrant [55].

A secondary purpose of the constitutional provisions and implementing statutes is to arise the householder that the search has been authorized by a magistrate [56].

[55]  Stegald v United States (1981) 451 US 204, 68 L Ed 2d 38, 101 S Ct 1642, on remand (CA5 Ga) 656 F2d 109, reh gr (CA5 Ga)664 F2d 1241, on reh (CA5 Va) 664 F2d 1242 and (not followed United States v Underwood (CA9 Cal) 693 F2d 1206, op withdrawn (CA9) 704 F2d 1059); People v Minjares (1970) 24 C3d 410, 153 Cal Rptr 224, 591 P2d 514, cert den 444 US 887, 62, L Ed 2d 117, 100 S Ct 181; People v Superior Court of Los Angeles County (1977, 2d Dist) 75 CA3d 76, 141 Cal Rptr 917; People v Superior Court of San Francisco (1979, 1st Dist) 94 CA3d 367, 156 Cal Rptr 416; Kaylor v Superior Court of Nevada County (1980, 3d Dist) 108 CA3d 451, 166 Cal Rptr 598.

The requirements of a search warrant is not an empty formality, but is the cornerstone of the guaranty of the right to privacy provided by US Const Fourth Amendment.  The assurance that a determination of probable cause will be made by a neutral and detached magistrate, rather than an officer under stress in the field is not a minor guaranty.  Under the warrant requirement, the authority of the executing officer and his need to search are carefully reviewed.  Limits are imposed on the search through the requirement of particularity, and the factual basis on which the affiant is justifying the search is made in advance of the search itself.  This insures that a search will not be impermissibly justified by what it turns up.  People v Dalton (1979) 24 C3d 850, 157 Cal Rptr 497, 598 P2d 467, cert den 445 US 946, 63 L Ed 2d 781, 100 S Ct 1345.

As to showing of probable case see § 2525

As to exigent circumstances see §2535

[56]  People v Superior Court Los Angeles County (1977, 2d Dist) 75 CA3d 76, 141 Cal Rptr 917.

2. Grounds § 2522

§ 2522.  In general

A search warrant may be issued on any of the following grounds: (1) when the property was stolen or embezzled [57]; (2) when the property or things were used as the means of committing a felony [58]; (3) when the property or things are in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom he or she may have delivered it for the purpose of concealing it or preventing its being discovered [59]; (4) when the property or things to be seized consist of any item or constitutes any evidence which tends to show a felony has been committed, or the ends to show that a particular person has committed a felony [60]; or (5) when the property or things to be seized consist of evidence which tends to show that sexual exploitation of a child, in violation of a specified provision of the Penal Code, has occurred or is occurring [61].

Cause for issuance of an inspection warrant [62] is deemed to exist if either reasonable legislative or administrative standards for conducting a routine or area inspection are satisfied with respect to the particular place, dwelling, structure, premises, or vehicle, or there is reason to believe that a condition of nonconformity exists with respect to the particular place, dwelling, structure, premises, or vehicle [63].

The Penal Code provides for the issuance, upon a proper complaint, of a warrant authorizing an officer to enter and search any building or place, and to arrest any person there present violating, or attempting to violate, any law relating to, or in any way affecting, dumb animals, or birds, and the Penal Code further provides for seizure of birds and animals used in violation of law [64].

No warrant may issue for certain designated types of news sources described in a particular provision of the Evidence Code [65]

Statutes authorizing the use of search warrants to search for and seize property the possession or use of which is declared by the legislature to be illegal or detrimental to public health or morals are not incompatible with the constitutional guarantees against unreasonable searches and seizures [66].

[61]  Deerings's Pen C § 1524(a)(5) (referring to sexual exploitation of a child in violation of Pen C § 311.3).

[65]  Deerings's Pen C § 1524(g) (referring to Ev C Sec 1070, relating to immunity of news reporters for nondisclosure of specified news sources).

3. Alication § 2523-2527

Summary

A warrant cannot be issued except upon probable cause, suorted by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized (§ 2523).  The magistrate may, before issuing the warrant, examine on oath the person seeking the warrant and any witnesses he may produce, and must take the affidavits in writing, and cause them to be subscribed by the party making them (§ 2524).  As a matter of constitutional law, a search warrant should not issue where the affidavit does not provide a sufficient basis for a finding of probable cause (§ 2525).  The Fourth Amendment imposes no sanctions for negligent or innocent misstatements of fact, or omissions of fact, in a search warrant affidavit, and compels mere excision of misstatements that are intentional or reckless (§ 2526).  A deposition on mere information and belief, not stating the evidence on which such belief is predicated, does not satisfy constitutional requirement pertaining to probable cause for the issuance of search warrants, but informant hearsay evidence in an affidavit may furnish proper suort for a magistrate's finding of probable cause on issuance of a search warrant (§ 2527).

§ 2523.  In general; affidavit

The federal and state constitutions forbid the issuance of a search warrant except on "probable cause," suorted by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized [67].  The Penal Code provides, in almost the same language, that a search warrant cannot be issued except on probable cause, suorted by affidavit, naming or describing the person, and particularly describing the property and the place to be searched [68].

The affidavit or affidavits must set forth the facts tending to establish the grounds of the alication for a warrant, or probable cause for believing that they exist [69].  The alication must specify, when alicable, that the place to be searched is in the possession or under the control of an attorney, physician, psychotherapist, or clergyman [70].  A further requirement for a valid affidavit is that it clearly and definitely specify the time of occurrence of the events relied upon to justify the issuance of a warrant, and that not more than a reasonable amount of time has elapsed between the events and the making of the affidavit [71].  A search warrant is not rendered invalid by being based on an affidavit that establishes a future, rather than a present, probable cause search [72]. However, the use of presigned warrants or the alteration of affidavits after issuance of warrants constitutes a reversible error [73].

An inspection warrant [74] is issued only upon cause, suorted by affidavit, particularly describing the place, dwelling, structure, premises, or vehicle to be searched and the purpose for which the search is made.  In addition, the affidavit must contain either a statement that consent to inspection has been sought and refused or facts or circumstances reasonably justifying the failure to seek such consent [75].

Where property is seized under a search warrant unlawfully issued, the seizure cannot be legalized by the issuance of a second warrant based on information obtained through the first search and seizure [76].  And where the conduct of police officers in entering and searching premises is unlawful in the first instance, a search warrant subsequently obtained on the basis of what they then observed is invalid, so that a search or seizure the reunder is unlawful and unreasonable [77].

[68]  Deerings's Pen C § 1525

As to descriptions of person and property in affidavit, see § 2529

Forms: Alleging failure of alication for warrant to particularly describe person or place to be searched, 22 Am Jur P1 & Pr Forms (Rev), Searches and Seizures, Form 51; Alleging lack of probable cause for warrant, 22 Am Jur P1 & Pr Forms (Rev), Searches and Seizures, Form 104.

[71] People v Nelson (1959, 1st Dist) 171 CA2d 356, 340 P2d 718 (ovrld on other grounds People v Butler, 64 C2d 842, 52 Cal Rptr 4, 415 P2d 819); Rugendorf v United States (1964) 376 US 528, 11 L Ed 2d 887, 84 S Ct 825, reh den 377 US 940, 12 L Ed 2d 303, 84 S Ct 1330.

[73]  People v Murgia (1974, 4th Dist) 43 CA3d 85, 117 Cal Rptr 564 (defendant's criminal conviction required reversal where the evidence leading to defendant's arrest and conviction was seized pursuant to a search warrant which was issued one day before the suorting affidavit was executed; the danger posed by the possible use of pre-signed warrants or the alteration of affidavits after issuance of warrants is too great for the court to consider the matter an inconsequential irregularity).

[74] See § 2519.

[75] Deering's CCP § 1822.51

[76] United States v Mitchell (1921, DC Cal) 274 F 128.

§ 2524.  Examination by magistrate

The magistrate may, before issuing the warrant, examine on oath the person seeking the warrant and any witnesses he may produce, and must take the affidavits in writing, and cause them to be subscribed by the party making them [78].

In lieu of the written affidavit, the magistrate may take an oral statement under oath which must be recorded and transcribed.  The transcribed statement is deemed an affidavit for purposed of this statute.  In such cases, the recording of the sworn oral statement and the transcribed statement must be certified by the magistrate receiving it and they must be filed with the clerk of the court. ..

Before issuing an inspection warrant [80], the judge may examine on oath the alicant and any other witness, and must satisfy himself of the existence of grounds for granting the alication [81].

§ 2525. Showing of probable cause

A search warrant cannot be issued except on probable cause, suorted by oath or affirmation [82].  As a matter of constitutional law, a search warrant should not issue where the affidavit does not provide a sufficient basis for a finding or probable cause.  The evidence obtained as a result of such a search warrant is inadmissible in a criminal trial, state as well as federal [83].  For a search warrant to satisfy the constitutional requirement of probable cause, the affidavit on which it is based must contain competent evidence sufficient to suort the finding of the issuing magistrate [84].  A search warrant affidavit must provide probable cause to believe the material to be seized is still on the premises to be searched when the warrant is sought [85].

In determining the sufficiency of an affidavit for a search warrant, the standards as to probable cause set down by the United States Supreme Court in its alication of the Fourth Amendment to affidavits used in the federal system must be followed [86].  The decision to issue a search warrant must rest primarily with the magistrate to whom alication is made, and a court may set aside a warrant only if, as matter of law, the affidavit or deposition on which it is based shows, on its face, that the probable cause required by the Constitution and by the Penal Code is lacking [87].  In passing the validity of a search warrant, a reviewing court may consider only information brought to the magistrate's attention [88].

In determining the sufficiency of an affidavit for the issuance of a search warrant, the test of probable cause is aroximately the same as that applicable to an arrest without a warrant, a commitment by a magistrate, or an indictment by a grand jury [89].

However, the probable cause needed for the issuance of a search warrant is less than that needed for a search without a warrant [90]. In determining probable cause for the issuance of a search warrant, the question is not whether the offense charged was in fact committed but whether the affiant, at the time of his affidavit, has reasonable grounds for belief that the law was being violated on the premises to be searched, and if the aarent facts recited in the affidavit would lead a reasonably prudent person to that belief, there is reasonable cause to issue the warrant [91].  Probable cause for issuance of a search warrant exists if a person of ordinary care and prudence would be led to conscientiously entertain an honest and strong suspicion that a crime has been or is being committed, or that there is specific property subject to seizure in the location for which a warrant is sought [92].

[82] See § 2523

[83] Aguilar v Texas (1964) 378 US 108, 12 L Ed 2d 723, 84 S Ct 1509 (ovrld on other grounds Illinois v Gates, 462 US 213, 76 L Ed 2d 527, 103 S Ct 2317, reh den (US) 77 LEd 2d 1453, 104 S Ct 33 and (not followed People v Landy, 59 NY2d 369, 465 NYS2d 867, 452 NE2d 1185) as stated in People v Ward (3d Dep) 99 A Div 2d 561, 470 NYS2d 943) and (not followed United Stated v Peyko (CA2 Vt) 717 F2d 741) and (not followed State v Anderson (Utah) 668 P2d 1258) and (not followed Commonwealty v Honneus, 390 Mass 136, 453 NE2d 1053

[84]  Skelton v Superior Court of Orange County (1969) 1 C3d 144, 81 Cal Rptr 613, 460 P2d 485; People v Garnett (1970, 1st Dist) 6 CA3d 280, 85 Cal Rptr 769; Re M. (1971, 2d Dist) 16 CA3d 96, 93 Cal Rptr 679.

[85] People v Smith (1980, 5th Dist) 108 CA3d 843, 166 Cal Rptr 778.

[86]  Aguilar v Texas (1964) 378 US 108, 12 L Ed 2d 723, 84 S Ct 1509 (ovrld on other grounds Illonios v Gates, 462 US 213, 76 L Ed 2d 527, 103 S Ct 2317, reh den (US) 77 L Ed 2d 1452, 104 S Ct 33 and (not followed People v Landy, 59 NY2d 369, 465 NYS2d 875, 452 NE2d 1185) as stated in People v Ward (3d Dept) 99 A Div 2d 561, 470 NYS2d 943) and (

[87] 

A search warrant is issued without probable cause, and therefore in violation of constitutional proscriptions, when the affidavit upon which it is based  contains no competent evidence sufficient to suort the finding of a magistrate, the indicated questions of competency and sufficiency being quesions of law.  People v Scoma (1969) 71 C2d 332, 78 Cal Rptr 491, 455 P2d 419.

In passing upon a determination of whether a search warrant was issued upon probable cause, a reviewing court is bound by the rule that the warrant can be used only if the affidavit fails as a matter of law to set forth sufficient evidence suortive of the magistrate's finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well a when presented by oral testimony. People v Superior Court of Santa Clara County (1979, 1st Dist) 91 CA3d 463, 154 Cal Rptr 157.

A search warrant can be used only if the suorting affidavit fails as a matter of law to set forth sufficient competent evidence suortive of the magistrate's finding of probable cause; it is the function of the trier of fact, not a reviewing court, to appraise and weigh evidence when presented by affidavit.  In examining the affidavit for sufficiency of the facts therein to suort the magistrate's finding of probable cause, the courts are to interpret the affidavit in a commonsense no technical manner.  People v Caron (1981, 2d Dist) 115 CA3d 236, 171 Cal Rptr 203.

Search warrant affidavits should be viewed and construed as a whole in a commonsense manner. Because of the preference accorded to warrants, doubtful or marginal cases will be resolved to uphold the warrant.  People v Caron (1981, 2d Dist) 155 CA3d 769, 203 Cal Rptr 172.

As to the reasonable of probable cause See § 2509.

Annotations:  Disputation of truth of matters stated in affidavit in suort of search warrant-modern cases, 24 ALR4th 1266; Counsel's right in criminal prosecution to argue law or to read law books to the jury, 67 ALR2d 245; Federal court determination of probable cause for search warrant: consideration of oral testimony which was, in addition to affidavit, before officer who issued warrant, 24 ALR Fed 107.

Law Review: Right to controvert affidavit suorting a warrant, 61 CLR 467; Rulde governing probable or reasonable cause for issuance of search warrant, 15 SCLR 139; The outwardly sufficient search warrant affidavit what if it's false?, 19 UCLA LR 96.

Forms:  Alleging failure of alication for warrant to show probable cause to issue warrant, 22 Am Jru P1 & Pr Forms (rev) Searches and Seizures, Form 52.

[89]  Skelton v Superior Court of Orange County (1969) 1 C3d 144, 81 Cal Rptr 613, 460 P2d 485; People v Garnett (1970, 1st Dist) 6 CA3d 280, 85 Cal Rptr 769.

As to reasonable or probable cause for arrest without a warrant, see § 2467

[90] 

A reviewing court will pay substantial deference to the magistrate's determination of probable cause, and may sustain a search where one without a warrant would fail.  People v Caron (1981, 2d Dist) 115 CA3d 236, 171 Cal Rptr 203.

As to probable cause needed for a warrantless search see § 2509

[91]  People v Acosta (1956, 4th Dist) 142 CA2d 59, 298 P2d 29; Arata v Superior Court of San Mateo County (1957, 1st Dist)153 CA2d 767, 315 P2d 473 (ovrld on other grounds Peole v Butler, 64 C2d 842, 52 Cal Rptr 4, 415 P2d 819); Williams v Justice Court for Orville Judicial District. (1964, 3d Dist) 230 CA2d 87, 40 Cal Rptr 724; People v Garnett (1970, 1st Dist) 6 CA3d 280, 85 Cal Rptr 769.

The affidavit in suort of a search warrant must furnish sufficient competent evidence to suort the magistrate's finding of probable cause and must describe with reasonable particularity the place to be searched and the property to be seized, the test for the latter being whether the warrant places a meaningful restriction on the object to be seized.  People v Alvarado (1967, 2d Dist) 255 CA2d 285, 62 Cal Rptr 891.

A suspect's past criminal record is a proper factor to consider in determining whether probable cause to search exists.  People v Thomas (1980, 2d Dist) 112 CA3d 980, 169 Cal Rptr 570.

§ 2526 Misstatement or omission of fact.

.. To mandate an evidentiary hearing, subsequent to the ex parte issuance of a search warrant, a criminal defendant, challenging the truthfulness of factual statements made in the warrant affidavit, must make a substantial preliminary showing that a false statement knowingly and intentionally, or reckless disregard for the truth, was included by the affiant in the warrant affidavit.... There must be allegations, accompanied by an offer of proof, of deliberate falsehood or of reckless disregard for the truth; allegations of negligence or innocent mistake are insufficient [97].

On the other had, state courts, relying on California law, have determined that deliberate or reckless misstatements in the warrant affidavit compel automatic quashing of the search warrant [98], and that unreasonable or negligent misstatement of fact in an affidavit for a search warrant must be excised and their remainder tested by the standard of probable cause [99]

.... On the other hand, when an affiant intentionally omits any fact from a search warrant affidavit for the purpose of deceiving the magistrate of recklessly disregards the accuracy and completeness of the affidavit, appropriate response of the court reviewing the affidavit is to quash the warrant, regardless of whether the omissions ultimately deemed material [6].

..

When a material fact is negligently omitted from a search warrant affidavit, the reviewing court should add the omitted fact to the affidavit and retest it for probable cause.  Negligent omissions of material facts, unreasonably forgets to include them, or makes a good faith but unreasonable decision that they need not or should not be included [8]

[98]

If an affidavit is found to contain deliberately false statements of fact, the entire affidavit is tainted and evidence obtained pursuant to the search warrant must be excluded. People v Tallmadge (1980, 2d Dist) 103 CA3d 980, 163 Cal Rptr 372.

§ 2527.  Hearsay and informant information

A deposition on mere information and belief, not stating the evidence on which such belief is predicated, does not satisfy constitutional requirements pertaining to probable cause for the issuance of search warrants [9].  But a deposition that sets forth the commission of alleged offense and the location of the property sought, not on information but in positive terms, is not subject to attack for failure to set forth the evidence rather than the ultimate facts [10].

Both the state and federal courts have held that informant hearsay evidence in an affidavit may furnish proper suort for a magistrate's finding of probable cause on issuance of a search warrant [11].  Although information provided by an anonymous informer is relevant on the issue of probable cause on an alication for a search warrant, corroborating evidence must be presented to justify the conclusion that reliance on the information was reasonable [12]

..

An affidavit in suort of a search warrant based on information received by the affiant from an informant should allege the informant's statement in language that is factual rather than conclusory, it should establish that the informant spoke with personal knowledge of the matter contained in such statement, and it should contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable [15].  In

...

In determining the reliability of informants upon whose information search warrants are based, the courts recognize a distinction between "citizen-informants" acting openly in aid of law enforcement and criminally involved or disposed "police-informers."  The strict requirement of a showing of reliability and credibility is ordinarily addressed to the particular problem of criminal informers and should not be alied in a wooden fashion to cases where the information comes from an alleged victim of or witness to a crime [17]. 

[9]

The issuance of a search warrant based on an affidavit of suspicion and belief, without any statement of facts and circumstances from which the issuing officer can find probable cause therefore, violates the Fourth Amendment to the Constitution of the United States (1933)  290 US 41, 78 L Ed 159, 54 S Ct 11.

[12]

In the absence of any proof of having given reliable information in the past with regard to criminal activity, corroborating evidence is necessary to establish the credibility of a confidential informant. People v Levine (1984, 2d Dist) 152 CA3d 1058, 199 Cal Rptr 756.

[15]

Probable cause for the issuance of a search warrant was not shown where the affidavit contained no reason in suort of the conclusion that the informant was "reliable," and where the affidavit did not sufficiently state the underlying circumstances from which the informant concluded that the defendant was engaged in criminal bookmaking activity.  Spinelli v United States (1969) 393 US 410, 21 L Ed 2d 637, 89 S Ct 584 (ovrld on other grounds United States v Harris, 403 US 573, 29 L Ed 2d 723, 91 S Ct 2075) as stated in United States v Andrews (CA5 Mich) 600 F2d 108, 100 S Ct 166 and (overld on other grounds Illinois v Gates, 462 US 213, 76 L Ed 2d 527, 103 S Ct 2317, reh den (US) 77 L Ed 2d 1453, 104 S Ct 33 and as stated in People v Ward (3d Dept) 99 A Div 2d 561, 470 NYS2d 943

[17] People v Schulle (1975, 1st Dist) 51 CA3d 809, 124 Cal Rptr 585; People v Superior Court of Santa Clara County (1979, 1st Dist) 91 CA3d 463, 154 Cal Rptr 157.

A citizen-informant is a citizen who purports to be the victim of or to have been the witness of a crime who is motivated by good citizenship and acts openly in aid of law enforcement. It is reasonable for police officers to act upon the reports of such an observer of criminal activity.  However, the designation "citizen-informant" is just as conclusionary as the designation "reliable-informant", and in either case the conclusion must be suorted by facts stated in an affidavit in suort of a search warrant based on hearsay statements of such an informant.  People v Smith (1976) 17 C3d 845, 132 Cal Rptr 397, 553 P2d 557.

In regard to the use of information sulied by informers in an affidavit for a search warrant, the status of a person as a "citizen-informer" does not eliminate the necessity of establishing that his or her information was reliable, and facts should be stated relative to the informant's identity which indicate the reliability of the information given.  People v Robinson (1974, 1st Dist) 41 CA3d 658, 116 Cal Rptr 455.

Because experienced stool pigeons or persons criminally involved or disposed are generally motivated by something other than good citizenship in providing information to law enforcement officers, they are not regarded as reliable informants for the purposes of the issuance of search warrants.  People v Superior Court of San Francisco (1979, 1st Dist) 94 CA3d 367, 156 Cal Rptr 416.

  To establish the credibility of a criminal informant, either he must be shown to have given reliable information in the past with regard to criminal activity, or the information he is presently giving is corroborated.  People v Schimidt (1980, 1st Dist) 102 CA3d 172, 162 Cal Rptr 171.

4. Issuance Sec § 2528, 2529.

§ 2529  Form and contents

A search warrant must be substantially in the form prescribed in the Penal Code [26].  It must conform strictly to the constitutional and statutory provisions for its issuance.  But, under the rule that public officials are presumed to act legally in the performance of their duties, a duly issued warrant is prima face valid [27].

A search warrant must be signed by the magistrate with his name of office, and directed to a peace officer in his county, commanding him forthwith to search the person or place named, for the property or things specific, and to retain such property or things in his custody subject to order of the court [28]. An inspection warrant [29] must particularly describe each place, dwelling, structure, premises, or vehicle to be inspected and designate the purpose and limitations of the inspection, including the limitations required by the code [30]

The magistrate may orally authorize a peace officer to sign the magistrate's name on a duplicate original warrant.

A search warrant is irregular and void on its face as a seizure of property their under is concerned, where it fails to describe with particularity the property to be taken [40]

[23]  Ops Atty Gen: 61 Ops Atty Gen 487 (a commissioner of a municipal court who is sworn as a temporary judge of the municipal court does not have the authority to issue search warrants, a temporary judge may issue bench warrants.

Forms: Alleging lack of authority to issue search warrant, 22 Am Jur P1 & Pr Forms (Rev), Searches and Seizures, Form 58; Alleging search warrant issued by non-neutral magistrate, 22 Am Jur P1 & Pr Forms (Rev), Searches and Seizures, Form 59.

[26] Deering's Pen C § 1529.

Forms: Search warrant, 22 Am Jur P1 & Pr, Searches and Seizures, Form 21, 22; 1

Searches and Seizures, Form 15:3, 15:4, 15:13.

[27]

Absent some palpable indication to the contrary, it is assumed the magistrate considered all the material presented him in suort of an alication for a search warrant, but this assumption is not indulged where substantial irregularity appears on the face of the record.  People v Jordan (1984, 4th Dist) 155 CA3d 769, 203 Cal Rptr 172

As to presumptions and burden of proof see § 2577

5. Execution § § 2530-2533

§ 2530 in general

.... A search warrant may be served only between the hours of 7:00 A.M. and 10:00 P.M., unless the magistrate issuing it, on a showing of good cause, inserts a direction in the warrant that it may be served at a time of the day or night [54].

...

An inspection pursuant to an inspection warrant [57] may not be made between 6:00 P.M. of any day and 8:00 A.M. of the succeeding day, nor in the absence of an owner or occupant of the particular place, dwelling, structure, premises, or vehicle unless specifically authorized by the judge upon a showing that such authority is reasonably necessary to effectuate the purpose of the regulation being enforced [58].

§ 2532. Time of execution

A search warrant must be executed and returned within ten days after date of issuance.  A warrant executed within the ten-day period must be deemed to have been timely executed, and no further showing of timeliness need be made.  After the expiration of ten days, the warrant, unless executed, is void.

An inspection warrant [69] is effective for the time specified therein, but not for a period of more than fourteen days, unless extended or renewed by the judge who signed and issued the original warrant, upon satisfying himself that the extension of renewal is in the public interest... After the expiration of such time, the warrant, unless executed, is void[70]

§ 2533 Knock and notice rule.

In executing a search warrant, the officer to whom it is directed may break open any outer or inner door or window of a house, or any part of a house, or anything therein, if, after notice of his authority and purpose, he is refused admittance, [71]

[71]  Failure to comply with the knock-notice requirements of Pen C § 1531 before entering premises to execute a search warrant renders any search and seizure dependent thereon unreasonable within the meaning of the Fourth Amendment and, as a consequence, any evidence seized pursuant thereto is inadmissible.  People v Constancio (1974, 3d Dist) 42 CA3d 533, 116 Cal Rptr 910.

D. Searches and Seizures Without Warrant § § 2534 2559

1. Generally

Summary

Searches conducted outside the judicial process, without proper approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions (§ 2534).  Emergencies of overriding magnitude, or exigent circumstances, may justify a search conducted without prior judicial approval (§ 2535).

§ 2534. In general

Searches conducted outside the judicial process, without proper approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions [84].

Because of the limitations on the use of search warrants [85], the most important problem as to searches and seizures, both from the point of view fo the adequacy of permissible law enforcement techniques and from the point of view of individual liberty as against police intrusions, is the extent to which searches without warrants are permitted [86].  The constitutional guaranties protect the individual only from searches and seizures that are "unreasonable," which may be taken generally to mean "unlawful,"

[84] Katz v United States (1967) 389 US 347, 19 L Ed 2d 576, 88 S Ct 507; Mincey v Arizona (1978) 437 US 385, 57 L Ed 290, 98 S Ct 2408; People v Minjares (1979) 24 C3d 410, 153 Cal Rptr 224, 591 P2d 514, cert den 444 US 887, 62 L Ed 2d 117, 100 S Ct 181; People v Dalton (1979) 24 C3d 850, 157 Cal Rptr 497, 598 P2d 467, cert den 445 US 946, 63 L Ed 2d 781, 100 S Ct 1345; People v Chapman (1984) 36 C3d 98, 201 Cal Rptr 628, 679 P2d 62; People v Barker (1970, 1st Dist) 12 CA3d 826, 96 Cal Rptr 760; People v Hampton (1981, 1st Dist) 115 CA3d 515, 171 Cal Rptr 312.

A search without a warrant is presumed unreasonable, and cannot be justified by probable cause alone, nor may exigency alone do so. People v Bradley (1982, 4th Dist) 132 CA3d 737, 183 Cal Rptr 434.

Annotations: Lawfulness of nonconsensual search and seizures without warrant, prior to arrest, 89 ALR2d 715, 721.

Law Reviews: Lawful searches and seizures without warrant, 43 CLR 565

Forms: Alleging warrantless search not incident to arrest, 2 Am Jur P1 & Pr Forms (Rev), Searches and Seizures, Form 86.

[85] see Sec 2523

§ 2535. Emergencies; exigent circumstances

The cardinal principle of the Fourth Amendment is that a warrant is required unless some grave emergency can be shown that necessitates an immediate search without a warrant [94].  Even where domestic security is involved, the Fourth Amendment requires judicial approval before initiation of a search or surveillance [95].

Emergencies of overriding magnitude, or exigent circumstances may justify a search conducted without prior judicial approval [96].

...

.. However, a warrantless search is not justifiable simply because a homicide recently occurred at the scene of the search, nor because the officers had begun their search promptly on arriving at the scene and my have searched only for evidence establishing the circumstances of death or circumstances relevant to motive, intent, or knowledge [4].  The seriousness of the offense under investigation does not in itself create exigent circumstances of the kind that under the Fourth Amendment will justify a warrantless search, where there is no emergency threatening life or limb, no indication that evidence will be lost, destroyed or removed during the time required to obtain a search warrant, and no suggestion that a warrant cannot easily and conveniently be obtained [5].

There is no really "litmus" test for determining whether emergency or exigent circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the police officer at the time of the search [6].

A search without warrant must be strictly circumscribed by the exigencies which justify its initiation.  When those circumstances cease to exist, the exception also ceases to exist and a warrant must be obtained [7]. 

[94] People v Minjares (1979) 24 C3d 410, 153 Cal Rptr 224, 591 P2d 514, cert den 444 US 887, 62 L Ed 2d 117, 100 S Ct 181.

Where police officers are not responding to an emergency, there must be compelling reasons and exceptional circumstances to justify a search in the absence of a search warrant.  Mozzetti v Superior Court of Sacramento County (1971) 4 C3d 699, 94 Cal Rptr 412, 484 P2d 84.

With respect to alication of the "doctrine of necessity" to a search without a warrant, the constitutionally guaranteed right to privacy must prevail, in the absence of a showing of a substantial threat to life, health, or property.  People v Smith (1972) 7 C3d 282, 101 Cal Rptr 893, 496 P2d 1261.

The presence of a search warrant serves a high function.  Absent grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.  This was not done to shield criminals nor to make the home a safe haven for illegal activities.  It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law.  Courts cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of this situation made that course imperative.  People v Bradley (1982, 4th Dist) 132 CA3d 737, 183 Cal Rptr 434.

[95] United States v United States Dist. Court for Eastern Dist. (1972) 407 US 297, 32 L Ed 752, 92 S Ct 2125.

Annotations: Construction and alication of "national security" exceptions to Fourth Amendment search warrant requirement, 39 ALR Fed 646.

[96]

As to burden of proving emergency see § 2577

As to emergencies or exigent circumstances see § 2462

[5] Mincey v Arizona (1978) 437 US 385, 57 L Ed 2d 290, 98 S Ct 2408.

2. Searches Incident to Lawful Arrest or Detention § § 2536-2544

§ 2536. In general

The right, without a search warrant, to search the person, as an incident to arrest, has always been recognized in this country and England.  Where one was placed in the custody of the law by the valid action of officers, it was not unreasonable to search him.  And there is a permissible area of search beyond the person proper. A limited right to search exists in connection with a lawful arrest, whether made with or without a warrant of arrest by a police officer or private person.  Searches incident to an arrest have been limited to searches for instrumentalities used to commit the crime, the fruits of that crime, and other evidence thereof which will aid in the arehension or conviction of the criminals; for articles the possession of which is itself unlawful, such as contraband or goods known to be stolen; and for weapons which can be used to assault the arresting officer or to effect an escape.

Not every person undergoing arrest may be searched for weapons.  The issue is whether a reasonably prudent person under the circumstances would be warranted in the belief that his safety or that of other was in danger [12].  Thus, it has been held that a warrantless search was not justified when the search was incident to a citation for an ordinary traffic violation[13], for breach of an ordinance against having open camp fires [14], or for public intoxication by liquor [15].

 

Probable cause for an arrest is ordinarily identical with probable cause for a search incident thereto, but there are circumstances in which a search may be unreasonable and unlawful whether or not a contemporaneous arrest of the suspect is lawful, and cannot be made to suort the arrest and subsequent prosecution.  Thus, it might be that an arrest could be justified if it aeared after the fact that the person arrested had committed a felony, but a search cannot be justified by what it turns up, and a search incidental to an arrest cannot be justified in the absence of reasonable cause known to an officer prior to the search merely by the fact that it reveals that the suspect has actually committed a felony and is hence subject to arrest [18].

[18].  People v. Brown (1955) 45 C2d 640, 290 P2d 528; People v. Simon (1955) 45 C2d 645, 290 P2d 531; People v. Boyles (1955) 45 C2d 652, 290 P2d 535.

§ 2537.  Arrest for offense committed in presence of arresting officer.

A peace officer may arrest a person without a warrant whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence [31].  When the officer has reasonable cause to believe an offense has been committed in his presence, he has reasonable cause, without a warrant, to search the person and premises of the person he has arrested.

Reasonable or probable cause for an arrest and incidental search by an officer acting without a warrant must exist in the officer's mind before the arrest [33].  An officer cannot have reasonable grounds for believing that a felony was committed in his presence where the facts do not point to any identifiable felony for which the defendant could have been arrested [34].

...

§ 2538.  Arrest based on belief that arrestee has committed felony

A peace officer, without a warrant, may arrest a person whom he has reasonable cause to believe has committed a felony, whether or not a felony has in fact been committed [38]. To justify the search of such a person, reasonable and probable cause for the arresting officer's belief that the person has committed a felony must be measured by the facts presented to the officer at the time he is required to act.  The circumstances to be considered include the time of day or night, the location of the suspect’s activities, and the suspect's conduct.

§ 2539.  Arrest based on information obtained from others

Reasonable cause for arrest and search is not limited to evidence that would be admissible at a trial on the issue of guilt, but may consist of information obtained form persons other than those who carry out the arrest and search.  In determining whether to make an arrest and search without a warrant, it is not the number of informants involved but the reliability of an informant and the reasonableness of the information sulied that should be considered by the officer [53].  In this connection, a person whose information has in the past led police to valid and guilty suspects may be termed a "reliable informant"[54]. 

[53]  People v.Gallegos (1964) 62 C2d 176, 41 Cal.Rptr. 590, 397 P2d 174 (a search and seizure was unreasonable where officers who arrested defendant and searched his premises acted on information from an informant who was under the influence of narcotics and whose reliability was unknown). 

Where a search or arrest without a warrant is sought to be justified on the basis of information secured from an allegedly reliable informant, his reliability may be substantiated not only by past experience showing him to have been a source of tested reliable information, i.e., information that in the past has led police to valid suspects, but also by the substantial corroboration from other sources of the information given in the present case.  People v Bates (1958, 1st Dist)  163 CA2d 847, 330 P2d 102.

§  2540 Temporary detention.

The Fourth Amendment alies to searches and seizures that involve only a brief detention short of traditional arrest.  An investigatory stop and search must be justified by some objective manifestation that the person stoed is, or is about to be engaged in criminal activity, or there must be reasonable grounds to believe that the person is wanted for past criminal conduct [63].

§ 2542.  Booking or incarceration

... It has been held that accelerated booking searches are inappropriate for arrestees who are merely cited for misdemeanors and are not subject to the booking process [82].

[82]  People v Superior Court of Los Angeles County (1972) 7 C3d 186, 101 Cal Rptr 837, 496 P2d 1205 (traffic violation); People v Brisendine (1975) 13 C3d 528, 19 Cal Rptr 315, 531 P2d 1099 (ilegal open campfire); People v Longwill (1975) 14 C3d 943, 123 Cal Rptr 297, 538 P2d 753 (overld on other grounds People v Laiwa, 34 C3d 711, 195 Cal Rptr 503, 669 P2d 1278) (Public drunkenness).

§ 543.  Probation and parole

A person on parole or probation retains many of his civil rights, including the protection of the constitutional guaranty against unreasonable searches and seizures [89].

 police officers other than parole officers are not justified in conducting a search of the parolee's premises without a search warrant or the parolee's consent, they may accompany a parole officer in such a search [92].

..

The defendant may, as an express condition of his parole or probation, agree to submit to warrantless searches.  In such cases, the parole of probation officers must comply with the terms of the agreement [96].  However, the condition of a warrantless search is invalid if it is not reasonably related to the crime for which the probationer was convicted [97]. 

[89] People v Jasso (1969, 2d Dist) 2CA3d 955, 82 Cal Rptr 229 (a probationer enjoys the protection of constitutional guaranties against unreasonable searches and seizures of his home, absent some other legal basis for the search); People v Howard (1978, 2d Dist) 79 CA3d 46, 143 Cal Rptr 342; In re Alan R. (1982, 3d Dist) 132 CA3d 601, 183 Cal Rptr 325.

An order prohibiting a probationer from carrying weapons does not subject him to a pat-down search for weapons by a police officer at any time; even a probationer hose rights have been radically restricted by court imposed conditions of probation is not without rights under the Fourth Amendment.  People v Grace(1973, 4th Dist) 32 CA3d 447, 108 Cal Rptr 66.

[92]  People v Thompson (1967, 1st Dist) 252 CA2d 76, 60 Cal Rptr 203, cert den 392 US 930, 20 L Ed 2d 1388, 88 S Ct 2276.

That a person is on parole does not, in itself, justify search by peace officers other than parole officers.  People v Gilkey (1970, 1st Dist) 6 CA3d 183, 85 Cal Rptr 642, cert den 401 US 924, 27 L Ed 2d 827, 91 S Ct 887.

[96]

A consent to search clause, to be a valid condition of probation or parole, must bear a reasonable relationship to the crime committed and the protection of the public, and such a clause is strictly construed.  There must also be a reasonable cause, which may be less than the grounds for an arrest or search warrant, to trigger the search.  Additionally, such a search may not be for purposes of harassment or merely because the subject haens to be a probationer or parolee, but must be based on a reasonable suspicion of criminal activity.  People v Guerrero (1978, 5th Dist) 85 CA3d 572, 149 Cal Rptr 555.

Although a search of defendant's belongings was a condition of his parole, there was a condition of his parole, there was no authority to suort the proposition that such a search extended to the private belongings of the parolee's wife who lived with the parolee.  People v Beronica (1980, 2d Dist) 107 CA3d 906, 166 Cal Rptr 109.

§ 2544. Questions of law and fact; review

The determination of the existence of reasonable or probable cause for and arrest may be a question of fact of the jury where the evidence on the point is in conflict.

SEARCHES OF PREMISES OF EFFECTS

§ 2545. In general

Searches and seizures inside a home without a warrant are presumptively unreasonable under the Fourth Amendment [7].

... In determining whether the officer acted reasonably, due weight must be given to his unparticularized suspicions or hunches, but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; he must be able to point to specific and articulable facts form which he concluded that his action was necessary [9].

[7]  Payton v New York(1980) 445 US 573, 63 L Ed 2d 639, 100 S Ct 1371.

Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect an arrest without a warrant.  Donovan v Dewey (1981) 452 US 594, 69 L Ed 2d 262, 101 S Ct 2534.

Annotations: Premises temporarily unoccupied as dwelling within provision forbidding unreasonable search of dwellings, 33 ALR2d 1430.

[9] Guidi v Superior Court of Los Angeles County (1973) 10 C3d 1, 109 Cal Rptr 684, 513 P2d 908.

VEHICLE SEARCHES

§ 2547 In general

A warrant is ordinarily required for the search of an automobile [26] or a ship [27].

...

The search of an automobile, whether pursuant to a warrant or not, must be suorted by probable cause.  Probable cause exists to conduct a search without warrant of an automobile, where a police officer is aware of facts that would lead a person of ordinary caution or prudence to believe, and consciously to entertain, a strong suspicion that the object of the search is in the particular place to be searched.  Persons lawfully within the United States are entitled to use the public highways and have a right to free passage thereon without interruption or search, unless a public officer authorized to search knows of probable cause for believing that the vehicle is carrying contraband or that its occupants have violated some law [32].  In the absence of such probable cause, a search without a warrant is unreasonable.  It would be intolerable and unreasonable if police were authorized to stop every automobile on the mere chance of finding contraband or criminals and thus subject all persons lawfully using the highways to the inconvenience and indignity of such search [33].  Thus, for local police on specific occasions to block off designated portions of a city and stop all automobiles entering or leaving the blocked off area, and to search them without having first obtained a search warrant and without having probable cause for believing them to be carrying contraband is unreasonable and in violation of the constitutional guarantees [34].  Moreover, the presence of suspects in an automobile is not enough in itself to justify a search of the automobile without a warrant or probable cause to believe there is contraband in the vehicle [35], and the right to search an automobile without a warrant does not extend to allow the search of an occupant of the vehicle, other than the driver, without a warrant or unless incidental to lawful arrest [36].

In early cases, it was held that warrantless vehicle searches must be based on both probable cause and exigent circumstances [37].  However, under current law, probable cause to believe that a lawfully stoed automobile contains contraband justifies an immediate warrantless search of the automobile, despite the absence of any additional exigent circumstances [38].

The random stop of a drive in order to check the driver’s license and the registration of the automobile constitutes an unreasonable seizure under the Fourth and Fourteenth Amendments, where the police officer has no articulable and reasonable suspicion that the motorist is unlicensed or that the automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law.  There is no justification for subjecting every occupant of every vehicle on the roads to a seizure at the unbridled discretion of law-enforcement officials on the basis of a state interest in promoting roadway safety [39].

[26] People v Blodgett (1956) 46 C2d 114, 293 P2d 57; People v Gale (1956) 46 C2d 253, 194 P2d 13.

Law Rev: Constitutional limitations on automobile searches, 3 Loyola U of LA LR 95.

[27] Atlas Finance Corp. v Kenny (1945) 68 CA2d 504, 157 P2d 401.

Annotations: Authority of United States officials to conduct inspection or search of American registered vessel located outside territorial waters of United States, 40 ALR Fed 402.


[31]

In traffic violation cases, search for a weapon without a warrant must be based on specific facts giving the officer reasonable grounds to believe weapons to be present in the stoed vehicle.  People v Norman (1975) 14 C3d 929, 123 Cal Rptr 109, 538 P2d 237.

[32] Wirin v Horrall (1948) 85 CA 2d 497, 193 P2d 470.

Every citizen has the constitutional right to free passage on the public highways. The mere possibility that a motor vehicle may be used for criminal activity is insufficient of itself to justify a stop and search.  The right of the citizen to drive on a public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality, is a fundamental constitutional right which must be protected by the courts.  People v Glover (1979, 1st Dist) 93 CA3d 376, 155 Cal Rptr 592.

[33] People v Gale (1956) 46 C2d 253, 294 P2d 13.

[34] Wirin v Horrall (1948) 85 CA 2d 497, 193 P2d 470.

[35] Henery v United States (1959) 361 US 98, L Ed 2d 134, 80 S Ct 168.

[36] United States v Di Re (1948) 332 US 98, 4 L Ed 2d 134, 80 S Ct 168.

[37] Coolidge v New Hampshire (1971) 403 US 443, 29 L Ed 2d 564, 91 S Ct 2022, reh den 404 US 874, 30 L Ed 2d 120, 92 S Ct 26 and (ovrld on other grounds Washington v Chrisman, 455 US 1, 70 L Ed 2d 778, 102 S Ct 812 (where police knew of the presence of the automobile and planned all along to seize it, there were no exigent circumstances justifying their failure to obtain a valid warrant); People v Huff (1978, 1st Dist) 83 CA3d 549, 147 Cal Rptr 316.

A search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope; consequentially, the scope of an automobile search, like any other search, must be strictly tied to and justified by the circumstances occasioning it.  Wimberly v Superior Court of San Bernardino County (1976) 16 C3d 557, 128 Cal Rptr 641, 547 P2d 417.

The mobility of an automobile makes it particularly susceptible to searches under the exigent circumstances exception to the requirement of a search warrant.  As long as it can be demonstrated that exigent circumstances rendered the obtaining of a warrant an impossible or impractical alternative and probable cause existed for the search, a search without a warrant of an automobile can be conducted.  However, no amount of probable cause can justify such a search or seizure absent exigent circumstances.  The elements peculiar to an automobile which may give rise to exigent circumstances are that the care is movable, the occupants are alerted and the car's contents may never be found again if a warrant must be obtained, but absent such circumstances, US Const Fourth Amendment requires a warrant.  There is no general automobile exception to the warrant requirement.  People v Odom (1980, 4th Dist) 108 CA3d 100, 166 Cal Rptr 283.

Both probable cause and exigent circumstances must exist to justify the search of an automobile without a warrant.  Once personal effects have been lawfully seized from an automobile and placed within a police officer's exclusive authority, and immediate search of the automobile is not necessary and a warrant must be obtained for its search.  When an item taken from an automobile is in the exclusive control of a police officer, the fact that the item was lawfully seized does not validate the search of the item itself.  People v George (1980, 5th Dist) 110 CA3d 528, 168 Cal Rptr 44.

[39] Delaware v Prouse (1979) 440 US 648, 59 L Ed 2d 660, 99 S Ct 391.

IDENTITY OR BEHAVIOR OF OCCUPANT

...

An automobile occupant's conduct reasonably susceptible of innocent interpretation does not constitute probable cause to search the vehicle incident to citation for a traffic violation.  A search incident to such citation is constitutionally authorized only if the conduct would induce a reasonable person to believe hat contraband or weapons are being concealed [51].  However, futive conduct indicating that something is being concealed will justify a search of that portion of the vehicle where it appears that the object was hidden [52].  On the other hand, to constitute probable cause for an arrest or search without a warrant, a furtive gesture alone is not sufficient.  It must be coupled with prior reliable information known to the officer or with additional suspicious circumstances observed by him [53]

[51]  A search of a car cannot be justified on the ground that the driver might be arrested for double parking, since the search would have no relation to the traffic violation and would not be a reasonable incident to an arrest therefore.  People v Blodgett (1956) 46 C2d 114, 293 P2d 57.

In traffic violation cases, a search without a warrant for weapons, like a search for contraband, must be based on specific facts or circumstances giving the officer reasonable grounds to believe that such weapons are present in the vehicle he has stoed; and where a traffic officer observed the passenger in a speeding car bend down and the driver of the car stop and walk toward the patrol car without waiting for the officer to aroach, such observations did not justify a belief that the driver and passenger were in possession of weapons.  People v Superior Court of Yolo County (1970) 3 C3d 807, 91 Cal Rptr 729, 478 P2d 449, 45 ALR3d 559.

A search of an automobile in which suspects were riding when arrested for making an unlawful u-turn cannot be justified where it bears no relation to the traffic violation or to a vagrancy charge on which the suspects were booked.  People v Molarius (1956, 3d Dist) 146 CA2d 129, 303 P2d 350.

Stoing the driver of a car for a violation of Veh C § 27150 ("loud pipes"), did not authorize a search of the interior of the car.  People v Muniz (1970, 2d Dist) 4 CA3d 562, 84 Cal Rptr 501.

Although a traffic violation is technically under arrest during the period immediately preceding his execution of a promise to aear, neither he nor his vehicle may be searched on that ground alone; the right to search must depend on other circumstances.  People v Superior Court of Marin County (1971, 1st Dist) 14 CA3d 935, 92 Cal Rptr 545.

A police officer's investigation relating to the detention required to issue a warning or citation for a minor traffic or vehicle violation is limited.  He may require the driver to identify himself, produce his driver's license and the registration certificate for the vehicle, and he may interrogate the driver with respect to the violation or violations which he has observed, but, absent some suspicious circumstances he may not search the driver or the vehicle, and he may not conduct an exploratory interrogation designed to elicit incriminating information wholly unrelated to the matter at hand.  People v Grace (1973, 4th Dist) 32 CA3d 447, 108 Cal Rptr 66.

[53]

When a motorist stoed by a police officer on a traffic offense, is seen to make a suspicious movement and is asked by the officer to explain it, the motorist may elect to stand on his constitutional right not to cooperate with the officers in securing evidence against him.  In such a case, probable cause for the officer's search of the vehicle for either contraband or weapons must be predicted on specific facts or circumstances (other than the mere negative response by the driver) that giver reasonable grounds to believe that contraband or weapons are present.  Gallik v Superior Court of Santa Clara County (1971) 5 C3d 855, 97 Cal Rptr 693, 489 P2d 573.

[56]

To be incident to a lawful arrest, a search without a warrant must be limited both as to time and place, and once an accused is safely in custody at the station house, removed from the vicinity of his car, the reasons justifying such a search of a vehicle as incident to the arrest no longer obtain.  People v Balassy 91973, 2d Dist) 30 CA3d 614, 106 Cal Rptr 461.

CONSENT

§ 2556 What constitutes; voluntariness

Consent to a search without warrant must be unequivocal, specific, and freely and intelligently given [37].

...

Where no more than acquiescence to a claim of lawful authority is shown, the burden of proving consent is not discharged, and the admission of plainly damaging evidence obtained throughout the search is prejudicial error [41].  The appearance of four police officers at the door of a private dwelling may be a disturbing experience, and a request to enter made by such officers to a distraught or timid person might under certain circumstances carry with it an implied assertion of authority that the occupant should not be expected to resist [42].

[37] Whether consent to a search is voluntary is a question of fact; the lower court's determination will not be overturned where it is suorted by substantial evidence People v. Abbott 91970, 1st Dist) 3 CA3d 966, 84 Cal Rptr 40.

[42]  People v Michael 91955) 45 C2d 751, 290 P2d 852.

§ 2559

Voluntary consent to a search may be withdrawn at any time before the search is completed, and actions inconsistent with a previous consent to a search may act as a withdrawal, if those actions are positive in nature

SCOPE AND MANNER OF SEARCHES AND SEIZURES

§ 2560 In general

A search must be conducted in a reasonable manner and must be limited in scope to the search for evidence relating to the crime suspected or charged.

In addition to the requirement of reasonable or probable cause for a search [4], a search without a warrant must be conducted in a reasonable manner and must be limited in scope to the search for evidence relating to the crime suspected or charged [5].

 On the other hand, forcible entries or seizures without either a warrant or reasonable cause for arrest are illegal and hence unreasonable [15].  The same is true of entries gained by trickery, stealth, or subterfuge [16]

[4] see sec. 2509

[5] People v Winston (1956) 46 C2d 151, 293 P2d 40.

The scope of a search must be strictly tied to, and justified by, the circumstances which rendered its initiation permissible [7].  A search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope[8].

§ 2561

Seizure under a search warrant is limited to the articles specified by statute, and a warrant to search for one thing does not ordinarily justify seizure of another

§ 2563.  Disposition of seized property

... If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause the property seized to be resorted to the person from whom it was taken [54].  This provision imposes a mandatory duty on the magistrate.  Thus, the magistrate must order the return of currency taken under a search warrant where the affidavit for the warrant did not mention or describe the currency [55].

PARTICULAR TYPES OF SEARCHES AND SEIZURES

§ 1565. Place, time, and duration

...The right to make a contemporaneous search without a warrant upon lawful arrest has been limited to the arrestee's person and to the area under the arrestee's immediate control [72].  The phrase "within his immediate control" means the area form within which the arrestee might gain possession of a weapon or destructible evidence [73].

[72]

A search, though incident to a lawful arrest, may be unlawful because it was unreasonable in scope; scope must be strictly tied to and justified by the particular circumstances which initially permitted the search.  People v Superior Court of Los Angeles County (1972) 7 C3d 186, 101 Cal Rptr 837, 496 P2d 1205.

[73] Chimel v California 91969) 395 US 752, 23 L Ed 2d 685, 89 S Ct 2034, reh den 396 US 869, 24 L Ed 2d 124, 90 S Ct 36 (where police officers, after arresting the accused in his home for burglary of a coin shop, conducted a warrantless search of his entire three-bedroom house, including the attic, the garage, a small workshop, and various drawers, the search went far beyond the person of the accused and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him, and was not authorized in the absence of a search warrant).

§ 2566. Search of persons.

... in the absence of exigent circumstances[83], a body search must be based on probable cause and be conducted pursuant to a warrant [84].

[85]

The federal courts have upheld border searches of body cavities, including such searches carried out in spite of the violent resistance of the person searched, but there must be a clear indication of the possession of narcotics or of smuggling which must be over and beyond a mere suspicion, i.e., in the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disaear unless there is an immediate search Henderson v United States (1967, CA9 Cal) 390 F2d 805.

SEARCH & SEIZURE REMEDIES

§ The proceedings provided for in the statute relating to motions for the return of property seized or for the suppression of property as evidence [46], and in those provisions relating to motions to set aside an indictment or information [47], to motions to reinstate a complaint [48], and to aealable decisions [49], constitute the sole and exclusive remedies, prior to conviction, to test the unreasonableness of a search or a seizure where the person making the motion for the return of the property or the suppression of evidence is a defendant in a criminal case an the property or thing has been offered or will be offered as evidence against him [50].  However, nothing contained in the statute authorizing search and seizure motions for the return of property or the suppression of evidence [51] prohibits a person from making a motion, otherwise permitted by law, to return property, brought on the ground that the property obtained is protected by the free speech and press provisions of the federal and state constitutions [52].

Those affected by an allegedly unconstitutional search and seizure involving a third person have the right to challenge its legality in a court of law [53].  Thus, defendant who was arrested for offering to sell cocaine had the right to challenge the legality of a search without warrant of an apartment in which a police officer interc3epted defendant's telephone call, during which defendant offered to sell cocaine to the officer who posed as a friend of the occupant of the apartment [54].

A number of additional remedies ay be available to a person who is threatened with an illegal search.  Thus, a person who is threatened with an illegal search, whether of his person or premises, may be able to avail himself of the provisions of the Penal Code section [55] authorizing resistance sufficient to prevent an offense against his person or an illegal attempt by force to take or injure property in his lawful possession [56].  It has been held that a person defending his premises can resist force with force, increasing it, short of commission of homicide, in the ratio of the intruder's resistance [57].  This is the common-law rule that the lawful occupant of premises has the right forcibly to eject trespassers if the force used in not excessive [58].  To protect his right to object to an unreasonable search and seizure, a person does not need to forcibly resist an officer's assertion of authority to enter his home to search it or his person, so long as he does not expressly or impliedly consent to the entry or search [59].

[46] see §§ 3182 et seq.

[47] see §§ 2774 et seq

[48] see § 2718

[49] see §§ 3586 et seq

[53] People v Harwood (1977, 2d Dist) 74 CA3d 460, 141 Cal Rptr 519.

[54] People v Hawood (1977, 2d Dist) 74 CA3d 460, 141 Cal Rptr 519.

[55] Deering's Pen C § 693.

[56] People v Ross (1912) 19 CA 469, 126 P 375.

As to lawful resistence in defense of property generally, see §§ 293, 557, 2285.

[57] People v Hubbard (1923) 64 CA 27, 220 P 315; Lorenz v Hunt (1928) 89 CA 6, 264 P 336.

[58] Phelps v Arnold (1931) 112 CA 518, 297 P 31.

[59] People v Michael (1955) 45 C2d 751, 290 P2d 852.

CIVIL ACTIONS

The victim of an unlawful search and seizure can recover any property illegally seized by a civil action for its return [60].  In addition, the owner of seized property can bring a suit for damages for its detention, as well as damages for any trespass involved [61].  If the property has been destroyed, recovery can be had for its value [62].  And, in a proper case, recovery can be had for mental suffering resulting from the invasion of privacy [63].

Individuals participating in unreasonable searches and seizures are subject to civil liability under the federal statutes pertaining to civil rights [64].

[60] Ligda v Edmonds (1971, 1st Dist) 16 CA3d 715, 94 Cal Rptr 234 (replevin or claim and delivery); Franklin v Municipal Court for San Francisco Judicial Dist. (1972, 1st Dist) 26 CA3d 884, 103 Cal Rptr 354 (conversion). 

-- Writ of Mandate for return of seized property.

As to motion for return of property made in criminal proceedings, see §§ 3182 et seq.

[61] Ryan v Crist (1914) 23 CA 744, 139 P 436; People v Gershenhorn 91964, 2d Dist) 225 CA2d 122, 37 Cal Rptr 176 (suspended by statute on other grounds as stated in People v Laiwa, 34 C3d 711, 195 Cal Rptr 503, 669 P2d 1278).

Annotations: Construction and alication of provision of Omnibus Crime Control and Safe Streets Act of 1968 (18 USCS § 2520) authorizing civil cause of action by person whose wire or oral communication is intercepted, disclosed, or used in violation of Act, 25 ALR Fed 759; Survivability of actions against federal officials for damages based on alleged constitutional violation, 48 ALR Fed 587.

Forms: Complaint for trespass under invalid search warrant, 22 Am Jur Pl & Pr Forms (Rev), Searches and Seizures, Form 102; Alleging liability of surety for wrongful seizure by officer, 22 Am Jur Pl & Pr Forms (Rev), Searches and Seizures, Form 103; Complaint in federal court for civil liability of federal agents for illegal search and seizure in violation of Fourth Amendment, 22 Am Jur Pl & Pr Forms (Rev), Searches and Seizures, Form 105.

Practice References: 14 Cal Practice, Action For Damages: 14 Cal Practice, Action For Damages For Wrongful Search and Seizure §§ 238:1-238:14.

CRIMINAL PROSECUTION

The provisions of the Federal Civil Rights Act, specifying that whoever, under color of any law, statute, ordinance, regulation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States is subject to criminal penalties [65], are applicable to illegal searches and seizures [66].

The Penal Code provides that every public officer, or person pretending to be a public officer, who, under the pretense or color of any process or other legal authority, seizes or levies on any property, or dispossesses any one of the lands or tenements, without a regular process or other lawful authority therefore, is guilty of a misdemeanor [67  The Penal Code also provides that every person who maliciously and without probable cause procures a search warrant to be issued and executed is guilty of a misdemeanor [68].

[62] Silva v MacAuley (1933) 135 CA 249, 26 P2d 887, reh den 135 CA 259, 27 P2d 791.

[63] Melvin v Reid (9131) 112 CA 285, 297 P 91 (superceded by statute on other grounds as stated in Roberts v Gulf Oil Corp. (5th Dist) 147 CA3d 770, 195 Cal Rptr 393).

Annotations: Right of privacy, 14 ALR2d 750.

[64] Irvine v California 91954) 347 US 128, 98 L Ed 561, 74 S Ct 381, reh den 347 US 931, 98 L Ed 1083, 74 S Ct 527.

Annotations: Defense of good faith in action for damages against law enforcement official under 42 USCS § 1983, providing for liability of person who, under color of law, subjects another to deprivation of rights, 61 ALR Fed 7.

[65] 18 USCS § 242.

[66] Irvine v California (1954) 347 US 128, 98 L Ed 561, 74 S Ct 381, reh den 347 US 931, 98 L Ed 1083, 74 S Ct 527; People v Cahan (1955) 44 C2d 434, 282 P2d 905, 50 ALR2d 513.

Law Reviews: Remedies for unreasonable search and seizure under Federal Civil Rights Act, 7 Stan LR 76; Right of victim of unreasonable search and seizure to relief under criminal provisions of Federal Civil Rights Act, 3 UCLA LR 55.

[67] Deerings's Pen C § 146.

As to impersonation of an officer, see §§ 1338-1340

[68] See § 1978.

PERSONS LIABLE

Where a magistrate refuses to restore on demand property illegally seized under a search warrant, he is liable for detention of and damage to the property as well as in trespass [69].  An officer who subjects a person or his premises to the indignity of an unlawful search or seizure with or without a warrant is liable in damages [70]  Under certain circumstances, the officer's superiors may be liable for his wrongful acts under the principle of respondent superior [71].  And where a public officer has given a surety bond, the victim of an unlawful search or seizure by that officer may in some circumstances have an action against the surety [72].

An officer who properly executes a search warrant regular on its face is not liable for any defects in the proceedings in which it was issued [73].

[69] Ryan v Crist (1914) 23 CA 744, 139 P 436.

[70] Ryan v Crist (1914) 23 CA 744, 139 P 436; Silva v MacAuley (1933) 135 CA 249, 26 P2d 887, reh den 135 CA 259, 27 P2d 791.

As to tort liabilities and immunities of public officers and agencies generally, see GOVERNMENT TORT LIABILITY §§ 1 et seq.

[71] Silva v MacAuley (1933) 135 CA 249, 26 P2d 887, reh den 135 CA 259, 27 P2d 791.

As to the doctrine of respondeat superior generally, see EMPLOYER AND EMPOLYEE §§ 83 et seq.

[72] Gomez v Scanlan (1960) 2 CA 579, 84 P 50, affd 155 C 528, 102 P 12.

[73] Deerings's CCP § 262.1.

Under Pen C § 830.6, providing that a citizen aiding an officer has such powers as the supervising officer may delegate, the citizen derives his immunity from the officer's own immunity; and the solicitation of aid by the police, as well as assistance in the search of another's premises conducted under the authority of a validly issued search warrant, are privileged and cannot serve as a basis for civil liability, Forro Precision, Inc. v International Business machines Corp.  (1982, CA9 Cal) 673 F2d 1045, 215 USPQ 299, 1982-1 CCH Trade Cases # 64708, 10 Fed Rules Evid Serv 671, 33 FR Serv 2d 1645.

EXTRAORDINARY WRITS

A preemptory writ of prohibition will not be granted to restrain the execution of a search warrant where, before issuance of the alternative writ, the warrant is executed and properly taken into the magistrate's possession, and no showing is made of further attempted judicial action on his part [74].  However, a magistrate may be prohibited from turning over to another party property taken under search warrant proceedings instituted solely to gain summary possession of the property [75].

Where a state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial [76].

The remedy of injunction may be available in certain situations involving searches and seizures.  Thus, it has been held that an illegal search and seizure was challengeable by a tax payer's suit to retrain the illegal expenditure and waste of public funds [77].

An order granting or denying a monition for the return of property or the suppression of evidence is reviewable by a pretrial petition for writ of mandate or prohibition [78].

[74] Ryan v Crist (1914) 23 CA 744, 139 P 436.

As to employment of writ of prohibition in criminal actions and proceedings generally, see §§ 3888 et seq.

[75] Modern Laon Co. v Police Court of San Francisco (1910) 12 CA 582, 108 P 56 (property alleged to have been stolen).

[76] Stone v Powell (1976) 428 US 465, 49 L Ed 2d 1067, 96 S Ct 3037, on remand (CA9 Cal) 539 F2d 693 and reh den, modif den 429 US 874, 50 L Ed 2d 158, 97 S Ct 197.

[77] Wrin v Parker (1957) 48 C2d 890, 313 P2d 844 (police surveillance by means of concealed microphones); Blair v Pitches (1971) 5 C3d 258, 96 Cal Rptr 42, 486 P2d 1242, 45 ALR3d 1206 (searches and seizures under color of claim and delivery law);  Wirin v Horral (1948) 85 CA2d 497, 193 P2d 470 (general police blockade).

A complaint stated a cause of action against police officers and a city employing them where it alleged tat the DEFENDANTS were illegally expending public funds by blocking off areas of the city and stoing all persons and automobiles entering or leaving such areas and searching then without having first obtained search warrants, and without having probable cause to believe that the automobiles contained contraband or that the individuals has violated the law.  Wirin v Horral (1948) 85 CA2d 497, 193 P2d 470 (general police blockade).

As to injunctions generally, see INJUNCTIONS §§ 1 et seq.

Practice References: 1 Cal Practice, Injunctive Relief, Chapter 5.

[78] See § 3186.

PRESUMPTIONS; BURDEN OF PROOF

In the absence of evidence to the contrary, it is presumed that officers acted legally in entertaining premises to make an arrest and in seizing property incidental to the arrest [79].  Thus, where the record is silent as to whether the officers making a search had a search warrant or a warrant of arrest, and there is no evidence showing the illegality of the search, it must be presumed that the officer regularly and lawfully performed their duties and has a search warrant [80].  And an assumption that police officers will, to suit their convenience, make use of fictitious anonymous informants as a basis for illegal searches and seizures is not to be indulged, and it is directly contrary to the statutory presumption that official duty has been regularly preformed and the law obeyed [81].  However, the presumption that an officer's entry of private premises was made in a legal manner will not be extended to show that an entry made by picking a lock was made pursuant to a valid consent by a building superintendent [82].

An accused has the burden of raising the question of legality of a search and seizure [83].  Once objection has been made, the prosecution then has the burden of producing a warrant if one exists [84].  An accuses who challenges the legality of a search and seizure establishes a prima facie case by showing that the search was made without a warrant [85].  The burden then rests on the prosecution to show that the search falls within one of the authorized exceptions to the warrant requirements [86].

Where the prosecution seeks to justify a search without a warrant on the ground that consent was given, it has the burden of proving the consent and the voluntariness thereof [87].  It has been stated that the prosecution must prove consent by preponderance of the evidence [88], by clear and positive evidence [89], or by substantial evidence [90].  But where the prosecution shows that an accused voluntarily consented to a search of his premises that disclosed the evidence claimed to have been illegally obtained, it is not necessary for it to show further that the search and seizure were reasonable as incidental to a lawful arrest [91].  And, if a defendant does not dispute the prosecution's evidence as to consent at the trial, he may not do so on appeal [92].

Where the prosecution seeks to justify a warrantless search on the ground of an emergency or exigent circumstances [93], the burden rests on the prosecution to establish the emergency exception or the existence of exigent circumstances [94].

As a general rule, the burden of establishing the invalidity of a search warrant is on the defendant [95].  Thus, where the defendant seeks to prove that an affidavit is suort of a search warrant contained knowingly false statements of fact [96], the defendant has the burden of proving the affiant's knowledge of falsity by a preponderance of evidence, or by direct evidence in the affiant, in which case the conflict is resolved by the trier of fact [97].  Similarly, when the defendant seeks to prove that the affiant intentionally omitted material information with the purpose of deceiving the magistrate, or recklessly disregarded the accuracy and completeness of the affidavit [98], the defendant has the burden of proving the affiant's intent or recklessness by a preponderance of the evidence [99].  However, where a search warrant has been obtained upon information acquired by an illegal search [1], the burden is on the prosecution to show that the warrant was not obtained by exploitation of the initial illegality [2].

[84] People v Burke (1964) 61 C2d 575, 39 Cal Rptr 531, 394 P2d 67.

[85] People v Constancio (1974, 3d Dist) 42 CA3d 533, 116 Cal Rptr 910.

[86] People v Haven (1963) 59 C2d 713, 31 Cal Rptr 47, 381 P2d 927; People v King (1963) 60 C2d 308, 32 Cal Rptr 825, 384 P2d 153; People v Shelton (1964) 60 C2d 740, 36 Cal Rptr 433, 388 P2d 665; Dyas v Superior Court of Los Angeles County (1974) 11 C3d 628, 114 Cal Rptr 114, 522 P2d 674; People v Norman (1975) 14 C3d 929; 123 Cal Rptr 109, 538 P2d 237; People v Holgun (1956, 2d Dist) 145 CA2d 520, 302 P2d 635; People v Silvestri (1957, 1st Dist) 150 CA2d 114, 309 P2d 871; People v Bradford (1972, 1st Dist) 28 CA3d 695, 104 Cal Rptr 852; People v Robinson (1974; 1st Dist) 41 CA3d 658, 116 Cal Rptr 455; People v Smith (1977, 5th Dist) 67  CA3d 638, 136 Cal Rptr 764; People v Woolsey (1979, 4t Dist) 90 CA3d 994,153 Cal Rptr 746; People v Salzman (1982, 3d Dist) 131 CA3d 676, 182 Cal Rptr 748; People v Sedillo (1982, 5th Dist) 135 CA3d 616, 185 Cal Rptr 475 (disagreed with on other grounds People v Britton (5th Dsit) 156 CA3d 689, 202 Cal Rptr 882); People v Brown (1975) 53 CA3d Su 1, 125 Cal Rptr 739.

Where it appears that officers broke into a house without a search warrant, the burden rests on the prosecution to introduce evidence that the officers had reasonable cause to break and enter to make an arrest.  In absence of such evidence, it must be taken as established for the purposes of a proceeding in prohibition to restrain further proceedings under an information that the entry into the house was unlawful, and it is immaterial whether or not the house was the defendant's.  Badillo v Superior Court of Sant Francisco (1956) 46 C2d 269, 294 P2d 23.

The burden of justifying home searches by a government department, without warrant, rests on the government, and is a heavy one where it seeks to rely on a supposed waiver of constitutional rights.  Parish v Civil Service Com. (1967) 66 C2d 260, 57 Cal Rptr 623, 425 P2d 223.

The prosecution in a criminal case must establish by a preponderance of the evidence that an arrest without a warrant and search is justified under a recognized exception to the warrant requirement.  People v James (1977) 19 C3d 99, 137 Cal Rptr 447, 561 P2d 1135; Re V. (1978, 2d Dist 85 CA3d 120, 149 Cal Rptr 180.

Where a search was made without a warrant and not incidental to a lawful arrest of defendant, the burden rests on the prosecution to justify the search as a reasonable one; in considering the question of reasonableness, the court looks to the facts and circumstances presented to the officers when they were called upon to act. People v Molarius (1963, 1st Dist) 213 CA2d 10, 28 Cal Rptr 541.

When the legality of a search and seizure is raised, a defendant makes a prima facie case by establishing that the search was made without a warrant, and the burden then rests on the prosecution to show proper justification.  People v Superior Court of Los Angeles County (1969, 2d Dist) 2 CA3d 304, 82 Cal Rptr 766 (disaroved on other grounds Mozzetti v Superior Court of Sacramento County, 4 C3d 699, 94 Cal Rptr 412, 484 P2d 84).

In a proceeding for a writ of prohibition to restrain a superior court from proceeding to trial, the burden was on the prosecution to show the validity of a search without warrant of petitioner’s premises that had led to seizure of evidence for trial, and that the search had been incident to petitioner's arrest.  Eisman v Superior Court of Santa Clara County (1971, 1st Dist) 21 CA3d 342, 98 Cal Rptr 342.

As to exceptions to the warrant requirements, see §§ 2534 et seq.

[87]   Bumper v North Carolina (1968) 391 US 543, 20 L Ed 2d 797, 88 S Ct 1788, 46 Ohio Ops 2d 382; Schneckloth v Bustamonte (1973) 412 US 218, 36 L Ed 2d 854, 93 S Ct 2041, on remand (CA9) 479 F2d 1047; People v Gorg (1955) 45 C2d 776, 291 P2d 469; People v Roberts (1956) 47 C2d 374, 303 P2d 721; People v Johnson (1968) 68 C2d 629, 68 Cal Rptr 441, 440 P2d 921; Blair v Pitchess (1971) 5 C2d 258, 96 Cal Rptr 42, 486 P2d 1242, 45 ALR3d 1206; People v James (1977) 19 C3d 99, 137 Cal Rptr 447, 561 P2d 1135; People v Strawder (1973, 1st Dist) 34 CA3d 370, 108 Cal Rptr 901 (disaroved on other grounds People v Bustamante, 30 C3d 88, 177 Cal Rptr 576, 634 P2d 927).

When the subject of a search is not in custody, and the state attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that the state demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.  Schneckloth v Bustamonte (1973) 412 US 218, 36 L Ed 2d 854, 93 S Ct 2041, on remand (CA9) 479 F2d 1047.

The burden is on the prosecution where it seeks to justify entry into an apartment on the ground that police officers reasonably believed in good faith that they had the consent of an authorized person to such entry.  People v Roberts (1956) 47 C2d 374, 303 P2d 721.

When the People seek to justify a search on the ground that consent was given, they have the burden of proving that the consent was lawful, was not a mere submission to authority, and was not inextricably bound up with unlawful conduct.  People v Lawler (1973) 9 C3d 156, 107 Cal Rptr 13, 507 P2d 621.

Where police officers had no search warrant, the burden is on the prosecution to show that their entry into a room or other premises was on invitation of one of the occupants or with the consent of such occupant, express or implied.  People v Contereras (1963, 2d Dist) 211 CA2d 641, 27 Cal Rptr 619.

The burden is on the People to establish the legality of a search without a warrant, and when they rely on the consent exception to the warrant requirement, they must establish not only htat the defendant consented, but that his consent was voluntarily given.  People v Ibarra (1980, 2d Dist) 114 CA3d 60, 170 Cal Rptr 440.

Because of the importance of preserving constitutional rights, various rules have been stated for the guidance of the trial judge in determining whether consent to the search was in fact given; the government must prove that it was given and in so doing must show that there was not duress or coercion, express or implied.  The consent must be "unequivocal and specific" and "freely and intelligently given."  Oliver v Bowens (1967, CA9 Cal)386 F2d 688.

As to consent generally, see §§ 2555 et seq.

[88]  The people have the burden of proving by a preponderance of the evidence that the defendant's manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority.  Re G. (1981, 5th Dist) 120 CA3d 218, 174 Cal Rptr 557.

[89]  Bumper v North Carolina (1968) 391 US 543, 20 L Ed 2d 797, 88 S Ct 1788, 46 Ohio Ops 2d 382; People v Gorg (1955) 45 C2d 776, 291 P2d 469.

[90] People v Challoner (1982, 2d Dist) 136 CA3d 779, 186 Cal Rptr 458 (when the government relies on consent to justify a search without a warrant, it must establish by substantial evidence that the consent was voluntarily given; mere acquiescence to a claim of authority will not suffice).

Where the prosecution relies upon consent in justification of a search without warrant, it has the burden of presenting substantial evidence of such consent.  It must show that the consent was, in fact, freely and voluntarily given, and the burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.  It must be shown that the consent was uncontaminated by any duress of coercion, actual or implied.  People v McKelvy (1972, 4th Dist) 23 CA3d 1027, 100 Cal Rptr 661.

[91] People v Burke (1956) 47 C2d 45, 301 P2d 241 (ovrld on other grounds People v Sidener, 58 C2d 645, 25 Cal Rptr 697, 375 P2d 641, 10 L Ed 2d 1048, 83 S Ct 1912 and (ovrld on other grounds People v Tenorio, 3 C3d 89, 89 Cal Rptr 249, 473 P2d 993); People v Fields (1959, 2d Dist) 167 CA2d 773, 334 P2d 1001.

[92] See § 2578

[93] see § 2535

[94] To obtain the benefit of the emergency exception to the general requirement for a warrant for a search for, or a seizure of, material alleged to be obscene..

[95] People v Butler (1966) 64 C2d 842, 52 Cal Rptr 4, 415 P2d 819.

[96] See § 2526

[97] People v Cook (1978) 22 C3d 67, 148 Cal Rptr 605, 583 P2d 130 (superceded by statute on other grounds as stated in People v Truer (5th Dist) 157 CA3d 345, 203 Cal Rptr 693, hear gr by sup ct); People v Sawkow (9184, 2d Dist) 150 CA3d 999, 198 Cal Rptr 374.

[98] See  2526

[99] People v Sawkow (9184, 2d Dist) 150 CA2d 999, 198 Cal Rptr 374 (an affidavit in suort of a search warrant, which failed to disclose that a witness was unable to make a positive identification at the stakeout or at a later photo lineup, contained an omission of immaterial fact, and DEFENDANTS failed to prove by a preponderance of the evident that the affinity omitted such information with the intent to mislead the magistrate or in reckless disregard of the accuracy of the affidavit..

[1] See § 2523

 

§ 2578 Defenses; waiver of right to object

BARGAIN WITH PUBLIC PROSECUTOR

Certain agreements between a public prosecutor and a prospective defendant are in flagrant violation of the interests of justice and therefore highly improper.  Thus, it is improper for a prosecutor to promise an accused, in return for a confession of guilt regarding a particular crime, immunity from prosecution for other crimes that he may have committed. People v Groves, 63 CA 709, 219 P 1033 (neither prosecutor nor court is bound by such bargain).

BAIL AND RECOGNIZANCE

A Generally §§ 2579-2581

§ 2579 In general; definitions and distinctions

"Bail," used as a noun, may refer to the means of procuring the release of one charged with an offense, .... The term "bail" may be used to refer to the security or bond for a defendant's appearance in court.  Again, "bail" may be used in general sense so that it includes deposits made instead of bail.  The term "bail" ma also be used to designate the person in whose custody the defendant is placed when released from jail and who acts as surety for the appearance of the defendant or the party under arrest.  This person is also frequently described as the "surety," and sometimes as the "bailor.".

"Bail," the verb, refers to the delivery of a person to his sureties, upon their giving, together with him, sufficient security for his appearance to answer the charge at the time and place aointed.

§ 2580 Recognizance

A "recognizance," at common law, is an obligation entered into before some court of record or duly authorized magistrate, with a condition to some particular act, usually to aear and answer a criminal accusation.

§ 2581 Purpose and effect.

The purpose of both bail and recognizance is to assure the defendant's attendance in court where his or her presence is required either before or after conviction [23].

Bail is not to be used as a means for punishing DEFENDANTS [24] or protecting the public safety [25]; although the California constitutional provision regarding the right to bail has been amended to permit detention in certain circumstances of a defendant charged with a felony involving violence or threats of violence [26].  Nor is basis intended for the purpose of raising revenue [27], affording pecuniary compensation to the government [28], or punishing the sureties [29].

[23] Law Reviews: The politics of bail reform and the need for judicial intervention, 12 UWLA LR 1.

[24] Re Newbern (1961) 55 C2d 500, 11 Cal Rptr 547, 360 P2d 43; Re Underwood (1973) 9 C3d 345, 107 Cal Rptr 401, 508 P2d 721; Re Boyle (1974) 11 C3d 165, 113 Cal Rptr 99, 520 P2d 723.

[25] Re Boyle (1974) 11 C3d 165, 113 Cal Rptr 99, 520 P2d 723.

[26] see § 2582

[27] People v North Beach Bonding Co. (1974, 1st Dist) 26 CA3d 663, 111 Cal Rptr 757.

[28] County of Los Angeles v Maga (1929) 97 CA 688, 276 P 352.

[29] People v North Beach Bonding Co. (1974, 2st Dist) 26 CA3d 663, 111 Cal Rptr 757.

B AS A MATTER OF RIGHT OR DISCRETION §§ 2582-2585

§ In General; constitutional provisions

Under the state Constitution, a person must be released on bail by sufficient sureties except when he or she has committed a capital crime and the facts are evident or the presumption great,

Under an initiative measure designed as Proposition Four, the California constitutional provision relating to bail was amended in 1982 [34].  As adopted, the provision specifies that a person must be released on bail by sufficient sureties, except for the following:  capital crimes when the facts are evident or the presumption great [35]; felony offenses involving acts of violence on another person when the facts are evident or the presumption great and the court finds, based upon clear and convincing evidence, that there is a substantial likelihood the person's release would result in great bodily harem to others [36]; or felony offenses when the facts are evident or the presumption great and the court finds, based on clear and convincing evidence, that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released [37].

The provision as to "substantial likelihood" cannot be reduced to a rigid formula susceptible of mechanical alication; the circumstances must be reviewed by the magistrate or judge on a case-by-case basis [38].

Excessive bail may not be required [39].  In fixing the amount of bail, the court must take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her aearing at the trial or hearing of the case [40].

Under the constitutional provision, a person may be released on his or her own recognizance in the court's discretion [41].

It should be noted that another initiative measure, designated as Proposition Eight and known as the Victims' Bill of Rights, was also passed by the voters at the same time as Proposition Four [42].

Under the constitutional rule that, where proposed amendments conflict, the measure receiving the highest affirmative vote prevails [43], the provisions of Proposition Four, having received the larger vote, govern insofar as bail procedures are concerned [44].

[34] Cal Const Art I § 12.

[35] Cal COnst Art I § 12(a)

[36] Cal Const Art I § 12(b)

Annotations: Pretrial preventative detention by state court, 57 ALR3d 956.

[37] Cal Const Art I § 12(c)

Clear and convincing evidence justified the trial courts denial of bail to an accused charged with two counts of soliciting murder, under Cal Const Art I § 12... paid $60 to an undercover police officer as a down payment on a death "contract."  In re Nordin (1983, 1st Dist) 143 CA3d 538, 192 Cal Rptr 38.

[38]  In re Nordin (1983, 1st Dist) 143 CA3d 538, 192 Cal Rptr 38.

[39] See Sec. 2601

[40] See Sec. 2600

[41]  Cal COnst Art 1 § 12.

As to factors to be considered on alication for release on personal recognizance, see § 2587.

[42] Cal Const Art 1 § 28(e)

[43]  Cal Const Arts II § 10(b), XVIII § 4.

[44] Brosnahan v Brown (1982) 32 C3d 236, 186 Cal Rptr 30, 651 P2d 274.

§ 2583. Statutory provisions

The Penal Code provides that, in a noncapital case, a defendant must be released from custody prior to conviction upon the posting of bail as a matter of right, or the defendant my be released from custody upon his or her own recognizance [45].  Under the statutory provision, a person charged with other than a capital offense is entitled to bail as a matter of right at any time prior to conviction [46], which right is absolute [47]..

... Thus, a person arrested and charged with a crime punishable by death is entitled to release on bail and recognizance where the proof is not evident and the presumption is not great under this rule [50].  The construction given to the statutory phrases "proof is evident" and "presumption thereof great" is that bail should be refused in capital case where the evidence is such that a verdict of guilty based on it would be sustained by a court [51].

.. Under the Penal Code, a defendant arrested for a misdemeanor may be released from custody upon conditional release or upon execution an appearance bond [60].  Such a defendant must, as a matter of right, prior to arraignment, be released from custody upon compliance with the applicable provisions for release on bail upon a deposit of a percentage of bail fixed and for release upon agreement to specified conditions [61].

Any person who has been arrested for or charged with an offense other than a capital offense may be released on his or her own recognizance by a court or magistrate who could release a defendant from custody upon the defendant giving bail, including defendant arrested upon an out-of-county warrant [62].  A defendant who is in custody and is arraigned on a complaint alleging an offense which is a misdemeanor, and a defendant who appears before a court or magistrate upon an out-of-county warrant arising out of a case involving only misdemeanors, is entitled to an own recognizance release unless the court makes a finding upon the record that such release will not reasonably assure appearance of the defendant as required.  In such event the court must set bail and specify the conditions, if any, whether the defendant may be released [63].

[45] Deering's Pen C § 1268a(a) (effective until December 31, 1985).

As to factors to be considered in determination of whether to release a defendant on his or her own recognizance, see § 2587.

Law Reviews: 44 CLS (bail in California); 2 Loyola U of LA LR 71 (the bail system and equal protection).

[46] Ex parte Wolf (1880) 57 C 94.

[47] RE Law (1973) 10 C3d 21, 109 Cal Rptr 573, 513 P2d 621.

[50] Ex parte Strange (1881) 59 C 416; Ex parte Brown (1885) 68 C 176, 8 P 829.

[51] Re Troia (1883) 64 C 152, 28 P 231; Ex parte Curtis (1891)  92 C 188, 29 P 223; Re Alication of Weinberg (1918) 177 C 781, 171 P 937.

[60] Deering's Pen § 1268a(a)

Any person who has been arrested for or charged with a misdemeanor may be released by a court or magistrate upon execution of an appearance bond.  Deering's Pen C § 1270.1 (effective unitl December 31, 1985).

As to release of a defendant arrested for a misdemeanor upon deposit of a percentage of the bail, see § 2606.

As to conditions for release of a person charged with a misdemeanor, see § 2626.

[61] Deerings's Pen C § 1268a(b), referring to Pen C § 1269d (both provisions effective until December 31, 1985).

As to release of a defendant arrested for misdemeanor upon deposit of a percentage of bail, see § 2606

As to conditions for release of a person charged with a misdemeanor, see § 2626

[62] See § 2592

[63] Deering's Pen C § 1270(a) (effective until December 31, 1985).

The trial court, in prosecution for violation of Veh C § 23123, having an open container of an alcoholic beverage in a motor vehicle, abused its discretion in fixing the amount of bail at $25 rather than releasing defendant on his own recognizance, where defendant had been released on his own recognizance by the police, was charged at the most with a misdemeanor (a municipal court violation dismissed during plea bargaining) and was entitled to be released on bail as a matter of right and to release on his own recognizance on good cause being shown. People v Arnold (1976) 58 CA3d Su 1, 132 Cal Rptr 922.

Annotations: alication of state statutes establishing pretrial release of accused on personal recognizance as presumptive from of release, 78 ALR3d 780.

2 AFTER CONVICTION AND PENDING ALICATION FOR PROBATION OR APPEAL §§ 2584, 2585

§ 2584.  In General

The Penal Code provides that the admission of a defendant to bail following his or her conviction of an offense not punishable with death and pending appeal or alication for probation, is committed to the discretion of the trial court in all cases other than those involving misdemeanors or appeals from judgments imposing fines only [65].  This discretion should not be arbitrarily exercised [66].

In ruling on an alication for admission to bail following conviction, the trial court should be governed by legal rules with the view of doing justice according to law, or to analogies of the law, as nearly as may be arrived at [67].  The exercise of discretion by the trial court will not be disturbed, however, except in an instance of manifest abuse [68].  For example, the denial by the trial court of admission to bail pending aeal, on the sole ground that it is not the practice of the court to allow bail in cases where the matter is on of discretion, does not constitute an abuse of discretion [69].

The fact that in all probability an imposed jail term will have been served before determination of an appeal does not make denial of admission to bail an abuse of discretion [70].

Where trial judge bases denial of an alication for bail on appeal for conviction of a felony on the erroneous determination that he lacked discretion in the premises, such denial will be deemed a refusal to exercise a jurisdiction imposed on him by the code provision [71].  Where defendant is already free on bail at the time of his conviction, it has been held optional with the trial court to permit him to remain on bail pending judgment [72].  However, where the defendant has been sentenced on more than one conviction but has aealed from only one judgment, the court is without power to fix bail [73].

[65]  Deering's Pen C § 1272(3)

The trial court abused its discretion in denying an alication for a stay of execution and release on personal recognizance of a defendant convicted and sentenced for bribery violations where the trial court correctly found that defendant’s appeal from the conviction was not frivolous or vexatious, where it further indicated it found there was no danger that defendant would try to escape, and where it did not aear that defendant would have the opportunity to commit similar criminal offenses pending aeal, he having been removed from office on conviction.  Re Robinson (1971, 2d Dist) 16 CA3d 539, 94 Cal Rptr 148.

Where defendant, after conviction of involuntary manslaughter, was granted probation for three years with incarceration in the county jail for one year as a condition thereof, it was an abuse of discretion to deny bail pending appeal in the absence of circumstance of additional terms in the probation order indicating the inadvisability of bail. Re McCaughan (1956, 3d Dist) 142 CA2d 690, 298 P2d 871.

A defendant may be entitled "almost as a matter of right" to bail after conviction and on aealing a felony case where probation has been granted on the condition of serving a sentence such as imposed in a misdemeanor case.  Re Torres (1947) 80 CA2d 579, 182 P2d 573 (treating denial of bail by trial court as abuse of discretion).

As to matters to be considered by the court in determining whether to grant bail after conviction, see § 2596.

For discussion of the rule when misdemeanors or appeals from judgments imposing a fine only are involved see § 2585.

Law Reviews: Stated discretion and bail pending aeal: judicial silence may no longer be golden, 8 SW U LR 810.

[66]  Ex parte Hoge (1874) 48 C 3; Ex parte Smallman (1879) 54 C 35; People v Davis (1945) 67 CA2d 837, 155 P2d 675; Re Torres (1947) 80 CA2d 579, 182 P2d 573.

Where one convicted on a felony charge was placed on probation for a two-year period, conditioned on confinement in the county jail and payment of a fine, the length of probation and term of imprisonment and fine being within those which could be granted in case of a misdemeanor conviction, it was an abuse of discretion by the trial court to deny admission to bail pending aeal.  Re Torres (1947) 80 CA2d 579, 182 P2d 573.

[67] Ex parte Hoge (1874) 48 C 3

[68] ...defendant engaged in other criminal activities before, during, and after trial...

[69] Ex parte Smith (1891) 89 C 79, 26 P 638 (criticizing a rule adopted by the trial court that bail would not be allowed to anyone pending appeal from a conviction of a felony as being inconsistent with Pen C § 1272); People v Cornell (1915) 28 CA 654, 153 P 726 (commenting that such a rule on its face may very well be said to be an aarent abuse of discretion); People v Ephraim (1925) 72 CA 479, 237 P 801; Re Alication of Ephraim (1925) 73 CA 104, 237 P 801.

[70] Re Torres (1947) 80 CA2d 579, 182 P2d 573.

[71] Re Friedman on behalf of Brumback (1956) 46 C2d 810, 299 P2d 217.

[72] People v Scott (1960, 1st Dist) 184 CA2d 792, 7 Cal Rptr 755.

[73] People v Walters (1954)123 CA2d 184, 266 P2d 563.

§ 2585.  Misdemeanors or appeals from judgment imposing fine only

The Penal Code provides that after conviction of an offense not punishable with death, a defendant who has made alication for probation or who had aealed may be admitted to bail as a matter of right, before judgment is pronounced pending alication for probation in cases of misdemeanors, or when the appeal is from a judgment imposing a fine only [74]; and as a matter of right, before judgment is pronounced pending alication for probation in cases of misdemeanors, or when the appeal is from a judgment imposing imprisonment in cases of misdemeanors [75].

Where an offense is punishable at the discretion of the trial court either as a felony or as a misdemeanor, admission to bail after judgment and on appeal is discretionary when the sentence imposed is one for felony [76], but a matter of right when the punishment imposed is for a misdemeanor [77].

[74] Deering's Pen § 1272(1)

[75] Deering's Pen § 1272(2)

[76] Re Alication of Wilkins (1924) 66 CA 754, 226 P 964; Frankfort v Superior Court of California (1925) 71 CA 357, 235 P 60.

As to discretion of the trial court to admit defendant to bail following a felony conviction, see § 2595.

[77] People v Oreck (1945) 69 CA2d 317, 158 P2d 940.

C. PROCEEDINGS FOR ADMISSION TO BAIL OR RELEASE ON PERSONAL RECOGNIZANCE §§ 2586-2598

1. GENERALLY

Admission to bail is obtained on the basis of a request by or on behalf of the defendant or an alication to a judge or magistrate having jurisdiction to admit to bail (§ 2586).  In determining whether a defendant will aear for subsequent court proceedings if released on personal recognizance, the trial court must consider his or her connection with the community, including employment or other sources of income, duration and location of residence, family attachments, property holdings, and any independent reason the defendant may have for wanting to leave or to remain in the community, together with other pertinent matters (§ 2587).  The various aearances or other performance by the defendant on which bail may be conditioned are specified in the Penal Code (§ 2588).  Procedure for acceptance, aroval, and justification of bail (§ 2589), as well as the taking of bail (§ 2590), must be conducted in accordance with the applicable statutory provisions.

§ 2586 In general; allocation and notice

Admission to bail is obtained on the basis of a request by or on behalf of the defendant or an alication to a judge or magistrate having jurisdiction to admit to bail

The manner of making alication for bail in the lower courts and before magistrates is not pointed out in the Penal Code; in practice, the procedure appears to be informal, being merely a request to the judge or magistrate having jurisdiction to admit to bail [80].

Alications to the courts of appeal or to the Supreme Court, when the case is pending on aeal, may be by petition for writ of habeas corpus or by motion [81].

If the defendant is brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto in the same manner as if the defendant has been brought before him on a warrant of arrest, and the same proceeding must be had thereon [84].

[80] People v Cornell (1915) 28 CA 654, 153 P 726.

[81] People v Cornell (1915) 28 CA 654, 153 P 726.

As to the right to release on bail or recognizance following conviction and pending aeal, see § 2595.

As to habeas corpus proceedings for admission to bail, see §§ 3858, 3859.

[84] See § 2806.

§ 2587.  Matters to be considered an burden no proof on alication for release on personal recognizance

In determining whether a detainee will aear for subsequent court proceedings if released on his own personal recognizance, the trial court must consider the detainee's ties to the community, including his employment or other sources of income, the duration and location of his residence, his family attachments, property holdings, and any independent reason the defendant may have for wanting to leave or to remain in the community, the detainee's record of appearance at past court hearings or flight to avoid persecution, and the severity of the sentence the detainee faces [85].  Only when the most serious offenses are charged can the question of severity of sentence be considered dispositive of the issue [86].

In a hearing on a pretrial detainee's request for release on his own recognizance, the prosecution must bear the burden of producing evidence of the detainee's record of nonappearance at prior court hearings and the severity of the sentence the detainee faces, while the detainee bears the burden of producing evidence of community ties.  The prosecution also bears the burden of proof concerning the detainee's likelihood of aearing at future court proceedings [87]. IN such proceedings, the trial court is not required to issue a statement of reasons for denying release of the defendant [88].

[85]  Van Atta v Scott (1980) 27 C3d 424, 166 Cal Rptr 149, 613 P2d 210 (taxpayers' action to enjoin expenditure of public funds in operation of bail and recognizance release systems).

[86] Van Atta v Scott (1980) 27 C3d 424, 166 Cal Rptr 149, 613 P2d 210.

[87] Van Atta v Scott (1980) 27 C3d 424, 166 Cal Rptr 149, 613 P2d 210 (disaroving Kawaichi v Madigan (1st Dist) 53 CA3d 461, 126 Cal Rptr 63 to the extent it is inconsistent).

[88] Van Atta v Scott (1980) 27 C3d 424, 166 Cal Rptr 149, 613 P2d 210

§ 2588. Appearance or performance on which bail may be conditioned

The various aearances or other performance by the defendant on which bail may be conditioned are specified in the Penal Code (§ 2588).  Procedure for acceptance, aroval, and justification of bail (§ 2589), as well as the taking of bail (§ 2590), must be conducted in accordance with the applicable statutory provisions.

D. BAIL AMMOUNT §§ 2599-2610

§ 2599 In general

If a defendant has aeared before a judge of the court on the charge contained in the complaint, indictment, or information the bail must be in the amount fixed by the judge at the time of the appearance [54].  If no such appearance has been made, the bail must be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail must be pursuant to the uniform countywide schedule of bail for the county in which the defendant must aear [55].

Provisions of the Penal Code relating to bail are declared to be applicable in cases triable in inferior courts [56].

[55]  Deering's Pen C § 1269b(b), referring to bail schedule as provided for in Pen C §§ 1269b(c), 1269b(d).

As to bail schedule generally see § 2605.

§ 2600.  Factors or circumstances to be considered

Constitutional [57] and statutory [58] provisions specify that in fixing the amount of bail, the judicial officer must take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of the defendant's aearing at the trial or hearing of the case.

In fixing the amount of bail in a particular case, the court should give consideration to the purpose of bail, which is to assure the presence of the accused to answer the charge against him [59].

[57] Cal Const Art I § 12.

As to factors to be considered in setting bail under the constitutional provision adopted pursuant to the measure known as Proposition 8, see § 2582.

§ 2601. Excessive bail

Federal [64] and state [65] constitutions prohibit the requirement of excessive bail [66].  Bail set at an amount higher than reasonably calculated to ensure that the accused will aear to stand trial and submit to sentence if convicted is excessive under the constitutional provisions [67].  Although bail should not be exacted for the purpose of punishing a person charged with the commission of a crime [68], bail will not be deemed excessive merely because it is more than the accused is able to pay [69].

The determination as to when bail is disproportionate in amount to the offense charged does not depend alone on the amount of money which may have been lost by one party or secured to another by the offense [70]; the issue depends, rather, on the moral turpitude of the crime, the danger resulting to the public from the commission of the offense, and the punishment imposed or authorized by law [71]

[64] US Const Eight Amendment

The federal constitutional provision against excessive bail is to be understood as a restraint on judicial discretion respecting the amount of bail and not as an attempt to regulate the legislative poser respecting eligibility for bail.  In re Nordin (1983, 1st Dist) 143 CA3d 538, 192 Cal Rptr 38.

[65] Cal COnst Art I § 12.

Whether State the constitutional limitation on excessive bail alies to bail after conviction and pending appeal has been doubted, since it appears in the same article and section of the constitution which declares the right to bail except in capital cases where the proof is evident or the presumption  great, and the latter provision is construed to aly only to bail before conviction.  Re Alication of Burnette (1939) 35 CA2d 358, 95 P2d 684 (finding nevertheless that bail in the amount exacted was not excessive).

[66] Practice References: Excessive Bail, 18 Am Jur POF 2d p. 149.

[67] Re Scaggs (1956)47 C2d 416, 303 P2d 1009.

A statute requiring that 25 percent of the amount determined to be reasonable bail be added to the amount of the bail and that the total sum be exacted of a defendant before being released from custody is unconstitutional as alied to bail since the result, if the statute were followed, would require excessive bail.  McDermott v Superior Court of San Francisco (1972) 6 C3d 693, 100 Cal Rptr 297, 493 P2d 1161.

[68] See Sec. 2581.

[70] Re Williams (1889) 82 C 183, 23 P 118.

[71] Ex parte Ryan (1872) 44 C 555; Re Williams (1889) 82 C 183, 23 P 118.

2. BAIL SCHEDULE

A uniform county wide schedule of bail for all bailable felony offenses is prescribed by Penal Soce. Sec. 2605.  Increase or decrees in the amount specified in a bail schedule may be permitted however in certain circumstances Sec. 2606.

Sec. 2605. In general; preparation and adoption

Under the Penal Code, it is the duty of the superior, municipal, and justice court judges in each county to prepare, adopt, and from time to time revise, at a meeting called by the presiding judge of the superior court of the county, a uniform county wide schedule of bail for all bailable felony offenses [82].

[82] Deerinsg's Pen C Sec. 1269b(c)

Sec. 2606. When variation permissible

Where a defendant is arrested without a warrant for a bailable felony offense and a peace officer has reasonable cause to believe that the amount of bail set forth in the schedule for that offense is not sufficient to assure the defendant's aearance, the peace officer must prepare a declaration under penalty of perjury requesting an order setting a higher bail [85].  The declaration must set forth the facts and circumstances in suort of the officer's belief and it must be filed with a magistrate in the county in which the offense is alleged to have been committed or the county having jurisdiction of the person of the defendant [86].

The defendant may make alication to such magistrate for release on bail lower than that provided in the schedule of bail or on his own recognizance.  The magistrate or commissioner to whom such an alication is made is authorized to set bail in such amount s he deems sufficient to assure the DEFENDANTS' appearance and to set such bail on such terms and conditions as in his discretion he deems appropriate, or he may authorize the defendant's release on his own recognizance.  If, after such an alication is made, no order changing the amount of bail is issued within the specified number of hours after booking, the defendant is entitled to be released on posting the amount of bail set forth in the applicable bail schedule [87].

[85]  Deering's Pen C Sec. 1269c

[86]  Deering's Pen C Sec. 1269c, referring to magistrates as defined in Pen C Sec. 808

[87]  Deering's Pen C Sec. 1269c

3. Increase or Reduction After Indictment Sec. Sec. 2607, 2608

H DISCHARGE OR EXONERATION OF BAIL OR DEPOSITOR Sec. Sec. 2630-2636

Sec. 2630. In General; impossibility of or excuse for performance

Sureties on a bail bond are liable for the appearance of the accused in accordance with the terms of the undertaking [16].  When these terms or conditions are met or the bond is cancelled by the court for any reason, the surety is exonerated [17].  It is recognized that performance of the condition of conditions of the undertaking may be rendered impossible or excused by an act of God, or of the oblige, or of the law; in such cases the sureties are also exonerated [18].  Under this rule, delay and hazards caused by a deliberate act of the state may excuse performance of the bail bond [19].

[19]  People v Meyers (1932) 215 C 115, 8 P2d 837 (authorities in second county, though requested to hold prisoner at conclusion of sentence for trial on first charge, effected his release without notice either to sureties or to authorities of first county); People v National Auto. & Casualty Ins. Co (1979, 2d Dist) 92 CA3d 481, 154 Cal Rptr 872.

2. Particular acts or events resulting in exoneration sec. sec. 2632-2636

An order by the court committing a defendant previously on bail to the custody of the sheriff, on the defendant's appearance of trial, followed by an actual taking into custody by the officer, exonerates the sureties on a bail bond as effectively as would a surrender of the defendant by the sureties [37].

[37] People v McReynolds (1894) 102 C 308, 36 P 590.

§ 2543

The protection afforded persons by the Fourth Amendments are not alied in the same manner to parolees or probationers.  However, a parolee or probationer may as an express condition of his parole or probation, agree to submit to a warrantless search.

MenuVert

The Earth Plan's Peopleisim  is THE Solution to the Worlds Problems do IT!
It's time to shut down the Pedophiles & Lucifer Worshipers who sacrifice children - please visit & support Veterans For Child Rescue.
Liberty For Life can not endorse any adverts below as they are randomly generated by advertising companies.