A. Search incident to arrest may occur prior to arrest if probable cause exists, even where the crime for which probable cause existed is different from crime of subsequent arrest.

United States v. Johnson, 2019 U.S. App. LEXIS 640 (9th Cir. Jan. 9, 2019)

Facts: In August 2015, Sergeant Clint Simmont of the East Palo Alto Police Department stopped driver Lamar Johnson. Simmont, based on his experience on the San Mateo County Narcotics Task Force and patrolling East Palo Alto, identified the smell of burnt and fresh marijuana. He asked Johnson for his driver’s registration and proof of insurance. Johnson said he didn’t have such information, and, when asked to confirm, pretended to search his glove box but did not “actually manipulate any items,” according to Sergeant Simmont. Police dispatch told Simmont that Johnson had been arrested for parole violations, which indicated to Simmont that Johnson had been convicted of a felony. Simmont asked Johnson to step out of the vehicle and searched his person, finding that Johnson was wearing a bulletproof vest. Sergeant Simmont arrested Johnson for being a felon in possession of body armor. Simmont and backup police officers subsequently searched Johnson’s car, and discovered a loaded handgun, plastic bags, scales, a pill bottle containing acetaminophen/hydrocodone pills, and concentrated cannabis. Johnson was taken to a police station, where a second search of his person revealed additional controlled substances.

Johnson was indicted on nine counts of drug and firearm offenses. The District Court denied Johnson’s pretrial motions to suppress evidence. Johnson then stipulated to certain facts and the District Court held a bench trial. The government dismissed two counts and the District Court convicted Johnson on the remaining seven. At sentencing, the District Court increased Johnson’s offense level by four levels because he had used body armor during the commission of a drug trafficking crime. Johnson appealed, arguing that the District Court erred in denying his motion to suppress and by applying the body armor enhancement to his sentence.

Held: The Ninth Circuit Court of Appeals explained that the search incident to a lawful arrest exception to the warrant requirement permits a police officer to search an arrestee’s person and the area within the arrestee’s immediate control.[1] The Court noted that it was well-established in the Ninth Circuit that the search in this context does not necessarily have to follow the arrest to be valid under the Fourth Amendment.[2] However, probable cause must exist at the time of the search, and the arrest must follow “during a continuous sequence of events”[3] to comport with the Fourth Amendment. The Court next noted that it was also well-established that when an officer’s known facts provide probable cause to arrest for an offense, the officer’s “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.”[4] The Court explained that the case here was about whether these two well-established principles could coincide without violating Fourth Amendment protections against unreasonable searches and seizures.

The Court explained that the search incident to an arrest exception was based upon the need to disarm and to discover evidence. Courts evaluate whether the justifications for the search incident to lawful arrest exception retain force in the context of a search performed by an officer who has probable cause to arrest and shortly thereafter does arrest. (Knowles v. Iowa, 525 U.S. 113 (1998).) The Court found that the justifications for the exception did not lose any of their force in a context where the arresting officer’s subjective crime of arrest was different than the crime for which probable cause existed, as long as: (1) the search was incident to and preceding a lawful arrest (i.e. there was probable cause to arrest); and (2) the arrest and search occurred roughly during the same period of time.

Rejecting Johnson’s argument that such a standard would invite discriminatory and pretextual searches, the Ninth Circuit explained that this case was not materially different from cases where the search happened before the arrest and the arresting officer’s subjective crime of arrest was the same as the crime for which probable cause existed. The Court explained that the “safeguards of probable cause and an actual custodial arrest” in both situations sufficiently protect individuals’ Fourth Amendment rights from Johnson’s scenario.

The Ninth Circuit also rejected the Johnson’s argument that, even applying this standard, the search of his person was unconstitutional because the officer did not have probable cause to arrest him. The Court found that the smell of fresh and burnt marijuana in Johnson’s car, along with plastic baggies in the glove compartment, and Johnson’s pretense of searching the glove compartment, suggested to Sergeant Simmont a fair probability that Johnson had committed, or was about to commit, the offense of marijuana transportation. The Court thus concluded that Simmont’s search of Johnson’s person prior to arresting Johnson was constitutional as it was supported by probable cause. Finding the District Court’s other judgments also valid, the Ninth Circuit Court of Appeals accordingly affirmed.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 4, available at www.jones-mayer.com.

B. When robber boasts of heist on social media, no Fourth Amendment violation if undercover officer accesses said boast by posing as false ‘friend’ on the site.

People v. Pride, 31 Cal. App. 5th 133 (4th Dist. 2019)

Facts: D.C. was robbed and assaulted in May 2017 in San Diego. D.C. called 911 a few minutes later, and said that a group of five males who he believed were gang members robbed him. Among the items stolen was a gold chain. Based upon D.C.’s description of a black male with a scar on his face who yelled, “This is West Coast,” a gang unit detective thought the suspect could be Chaz Nasjhee Pride. The detective later testified that he had monitored gang members’ social media activity on a near-daily basis for over three years, that Pride was one of the West Coast Crip gang members he monitored, and that Pride was the only West Coast Crip gang member with a prominent scar on his jaw.

The detective checked Pride’s social media accounts. He logged into a social media account, which was an account accepted by Pride as a social media “friend.” Pride apparently did not know the profile that he accepted as a “friend” account was accessible by the detective. The detective did not log into or hack into Pride’s account. The detective found a video Pride posted shortly after the time of the robbery showing Pride wearing a gold chain around his neck and saying, “Check out the new chain, dog.” Offered a photo lineup the next day, D.C. said his “gut” told him the photo of Pride was the person who robbed him. D.C. was shown a still photo from the video showing the chain but without revealing Pride’s face. D.C. confirmed it was his chain. Officers executed a search warrant at Pride’s residence, and recovered several items associated with the robbery of D.C. When Pride was arrested, he was wearing D.C.’s gold chain.

A jury convicted Pride of robbery under Penal Code section 211, and found true gang enhancement allegations under Penal Code section 186.22 (b)(1). He was sentenced to 21 years in prison based in part on a five-year serious felony enhancement. Pride appealed, contending the trial court’s admission of the video that he posted violated his rights under the Fourth Amendment and the Electronic Communications Privacy Act[5] (“ECPA”) because the detective obtained the video without a warrant by portraying himself as a friend to gain access to Pride’s social media account.

Held: The California Fourth District Court of Appeal said the basic purpose of the Fourth Amendment is to protect the security and privacy of individuals against arbitrary invasions by government officials. The Court explained that when someone seeks to preserve something as private, and “his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ … official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.” Carpenter v. United States, 138 S.Ct. 2206, 2213 (2018).

The Court noted that some state and district courts had determined that there was no Fourth Amendment violation when an undercover officer posed as a false friend and obtained incriminating information from a social media page. Courts in these cases found that there was no reasonable expectation of privacy when a social media user shared information with “friends.” The Fourth District explained that these cases were in accord with “long-standing United States Supreme Court precedent holding the Fourth Amendment affords no protection for voluntary communications with individuals who are secret government informers or agents.” The Fourth Amendment did not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” (Hoffa v. United States (1966) 385 U.S. 293, 302.) In People v. Phillips,[6] the California Supreme Court held that a recorded phone call was admissible if one party consented to the recording, even if the consenting party was directed by the government. The Phillips Court explained that “by taking a companion into his confidence, [the accused has] in essence extended his zone of privacy to embrace the companion as to any confidences so disclosed. There is simply no constitutional principle that prohibits the recipient of a confidence from breaching the trust reposed in him not to disclose it to others, including the police.”

The Fourth District found here that Pride had similarly chosen to share with social media “friends” a video of himself wearing D.C.’s stolen chain. His expectation of privacy was not increased by the fact that he chose a social media platform where posts disappeared after a period of time. Instead, in posting the video message, Pride assumed the risk that the account for one of his “friends” could be an undercover profile for a police detective or that any other “friend” could save and share the information with government officials. Therefore, there was no Fourth Amendment violation here.

The Fourth District Court of Appeal ultimately remanded the case for sentencing matters  unrelated to this discussion.

C. Unlawful seizure when police discovered knives after they prolonged traffic stop by commanding passenger to provide identification because they had no reasonable suspicion and passenger’s identity is unrelated to stop.

United States v. Landeros, 2019 U.S. App. LEXIS 1021 (9th Cir. Jan. 11, 2019)

Facts: In February 2016, Pascua Yaqui Police Department Officer Clinton Baker pulled over a car whose driver was speeding near the Pascua Yaqui Indian reservation in Arizona. Two young women were passengers in the back seat, and Alfredo Landeros was in the front passenger seat. The driver provided identification to Officer Baker. The officer testified that he smelled alcohol in the car. The two women in the backseat appeared to the officer to be minors. According to the two women’s testimony, Officer Baker asked for their identification, explaining that he was asking because they looked younger than 18 years old “and it was past a curfew.” The two women—who were 21 and 19 years old—provided identification.

Officer Baker testified that he did not believe Landeros was underage, and, in fact, Landeros was not underage. According to Officer Baker, he “commanded” Landeros to provide identification. Landeros refused, and informed Officer Baker that he was not required to identify himself. The officer repeated his demand for Landeros’s ID, and Landeros again refused. Officer Baker called for back-up, prolonging the stop. A second officer arrived and both officers repeatedly “commanded” Landeros to exit the car, declaring that he was not being “compliant.” When Landeros eventually did exit the car, Officer Baker testified that he saw for the first time a machete and pocketknives, along with two open beer bottles by the front passenger seat floor. Landeros was handcuffed and arrested both for possessing an open container and for “failure to provide his true full name and refusal to comply with directions of police officers” under two Arizona state statutes.[7] With Landeros’ consent, the second officer searched Landeros’ pockets, finding six bullets.

Landeros was indicted for possession of ammunition by a convicted felon under 18 U.S.C. sections 922(g)(1) and 924(a)(2). He moved to suppress the evidence. The District Court followed a magistrate judge’s recommendation in denying Landeros’ motion. Landeros entered into a plea agreement that preserved his right to appeal. The District Court accepted the agreement and sentenced Landeros to 405 days in prison and three years of supervised release. Landeros appealed.

Held: The Ninth Circuit Court of Appeals explained that the United States Supreme Court held in Rodriguez v. United States that “[a]n officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” 135 S. Ct. 1609, 1615 (2015). Law enforcement may not extend a traffic stop withtasks unrelated to the traffic mission, absent independent reasonable suspicion. Rodriguez, 135 S. Ct. at 1616-17. In reaching this conclusion, the Supreme Court made clear that what mattered was the added time, not at what point, in the chronology of a stop, that time was added.

Applying Rodriguez here, the Ninth Circuit assumed that, because Officer Baker had reasonable suspicion to believe the two women in the backseat were underage, he could extend the initially lawful stop to ask the women for identification. The Court explained that the several minutes of additional questioning to determine Landeros’s identity was only permissible, however, if it was (1) part of the stop’s “mission” or (2) supported by independent reasonable suspicion. When making a stop for minor traffic violation as Officer Baker did here for the speeding violation, typically “an officer’s mission includes ordinary inquiries incident to the traffic stop.” Rodriguez, 135 S. Ct. at 1615. The Court found that the identity of a passenger, would ordinarily have no relation to a driver’s safe operation of a vehicle. Moreover, knowing Landeros’s name would not have made the officers any safer. Consequently, the Court found that that Officer Baker’s questioning of Landeros was not part of the stop’s mission. Thus, unless there was independent reasonable suspicion, Officer Baker’s extension of the stop to question Landeros would be impermissible under the Fourth Amendment.

The Court explained that reasonable suspicion “exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion.” United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc). The government contended that Officer Baker had reasonable suspicion of “underage drinking and curfew violations” based on “the smell of alcohol and belief that the back seat passengers were younger than eighteen.” The government’s view was that an extension of the traffic stop was therefore necessary because Landeros’s conduct prevented the officers from being able to determine whether he had committed the offenses of underage drinking or curfew violation. However, the Ninth Circuit observed that Officer Baker stated on cross-examination that Landeros did not look “underage” to him at the time of the stop. Also, Officer Baker’s testimony and reports indicated that he had asked Landeros for identification because it was “standard” procedure, not because he was concerned about Landeros’s age. The Court found that the record did not show that Officer Baker had a reasonable suspicion that Landeros was out past his curfew or drinking underage. The Court thus concluded that the extension of the traffic stop to investigate Landeros in this regard was an unlawful seizure under the Fourth Amendment.

The Court further explained that without independent reasonable suspicion at the time Officer Baker requested his identification, neither of the officers could lawfully order Landeros to identify himself. Thus, Landeros’s refusal to do so did not constitute a violation of the Arizona state statutes pertaining to officer orders for identification. The Court held that the bullets Landeros was convicted of possessing, observed by the police only because he was ordered from the car as part of the unlawfully extended seizure and subsequently consented to a search of his pockets, could not be introduced at trial. Accordingly, the Ninth Circuit Court of Appeals reversed the District Court’s denial of Landeros’s motion to suppress.

D. Collection of defendant’s DNA sample was unlawful under the Fourth Amendment because prosecution failed to prove that his DNA was collected as part of a routine booking procedure.

People v. Marquez, 31 Cal. App. 5th 402 (4th Dist. 2019)

Facts: In October 2006 in Ventura County, Marquez was arrested on a drug possession offense. Authorities collected his DNA sample and entered his DNA profile into the California Department of Justice DNA Data Bank, but without Marquez’s consent. Marquez was never charged for the drug offense, but pled guilty in September 2007 to a different felony charge. He was placed on probation and ordered to submit to DNA testing under Penal Code section 296.

In 2008, Marquez attempted to rob a bank and fought off bank managers before he fled. However, he left the leather organizer which contained the banks would-be-stolen money as well as a pair of glasses. From these items, investigators obtained DNA evidence. That evidence matched Marquez’s DNA profile in the database (a “cold hit”), and learned Marquez was on felony probation and subject to a search and seizure condition. Police contacted Marquez, and with his voluntary consent they collected another DNA sample, which matched the DNA evidence from the robbery.

The trial court denied Marquez’s motion to suppress the DNA evidence, and a jury convicted him of two second degree robbery counts and a related offense. The trial court held that Marquez’s 2006 DNA sample was lawfully collected. Alternatively, the trial court held that the 2008 DNA evidence was “attenuated” because the September 2007 order for Marquez’s DNA testing was an “independent intervening event.” The court sentenced Marquez to 25 years to life in state prison, plus an additional 15 years for three alleged prior serious felony convictions. The California Fourth District Court of Appeal subsequently affirmed, holding that the 2006 DNA collection was lawful under the Fourth Amendment to the United States Constitution. In 2018, the California Supreme Court ordered the Fourth District to vacate its previous decision and reconsider the case in light of its decision in People v. Buza.[8]

Held: Marquez had argued that the 2006 DNA collection violated the Fourth Amendment and the derived evidence should have been suppressed. Looking at the warrantless collection of Marquez’s DNA in 2006, the Fourth District Court of Appeal initially explained that a warrantless search is presumptively unreasonable under the Fourth Amendment,[9] unless the prosecution proves by a preponderance of the evidence that the search falls within an exception to the warrant requirement.

The Court of Appeal explained that the United States Supreme Court in Maryland v. King[10]crafted a new Fourth Amendment exception to the warrant requirement. Following an arrest supported by probable cause, the collection of a suspect’s DNA by taking a cheek swab during a routine booking procedure was established as a valid exception to the warrant requirement (King also held that a DNA cheek swab—like any invasion of the body—was a “search” within the meaning of the Fourth Amendment). Moreover, the California Supreme Court in Buza[11]held that the collection of a DNA sample is lawful when a suspect is validly arrested on probable cause to hold for a serious offense as part of a routine booking procedure.

Here, the Fourth District held that the prosecution failed to prove by a preponderance of the evidence that Marquez was validly arrested in 2006 because there was nothing in the record to indicate that Marquez’s 2006 arrest was supported by probable cause; no charges were ever filed and there was nothing indicating suggesting Marquez was guilty of any “serious” offenses. Nor was there any record that his DNA was collected as part of a routine booking procedure. The Court observed that Marquez’s DNA was collected four days after his arrest, a delay that was left unexplained by the prosecution. The Court accordingly found that the prosecution failed to establish that the 2006 DNA collection of Marquez’s DNA sample fell within an exception to the warrant requirement. Thus, the Court concluded that the 2006 warrantless search by way of the DNA collection violated the Fourth Amendment.

The Fourth District next considered whether the 2008 DNA evidence should have been excluded. The Court explained that the “exclusionary rule” generally prohibits evidence obtained in violation of the Fourth Amendment from being used in criminal trials. (Mapp v. Ohio (1961) 367 U.S. 643, 650–651.) However, the United States Supreme Court has “repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation.”[12] One such exception to the exclusionary rule is the attenuation doctrine. Under this doctrine, exclusion of the evidence is not required when the connection between the unlawful activity and the evidence in question becomes “‘so attenuated as to dissipate the taint’”[13] of the unlawful activity. The Supreme Court has described three factors that determine whether the attenuation doctrine should be applied: (1) how much time elapsed between the unconstitutional conduct and the discovery of evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.

Here, the Court found that a substantial period of time of about two years had elapsed between the unlawful collection of Marquez’s DNA sample in 2006 and the lawful collection of DNA evidence in 2008. The Court also found that Marquez’s three (or more) arrests and order to submit to DNA testing on each occasion were intervening circumstances supporting attenuation from the 2006 collection. Likewise, the fact that at the time of Marquez’s 2008 DNA collection, he was on felony probation and consented to the cheek swab raised another intervening circumstance. Finally, the Court found a lack of evidence concerning flagrant official misconduct in obtaining the 2006 DNA sample. Considering these three factors, the Court of Appeal therefore concluded the 2006 unlawful collection of Marquez’s DNA sample was sufficiently attenuated from the 2008 “cold hit” linking Marquez to the robbery and the lawful 2008 collection of his DNA sample. Thus, the Fourth District concluded that the trial court properly admitted the 2008 DNA evidence under the attenuation doctrine. Accordingly, the Court of Appeal affirmed as to these matters, though the Court remanded to the trial court for other reasons not relevant here.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 6, available at www.jones-mayer.com.


Supreme Court reverses the Ninth Circuit on the issue of qualified immunity.

City of Escondido v. Emmons, 139 S. Ct. 500 (2019)

Facts: In April 2013, City of Escondido police received a 911 call from Maggie Emmons to report that her husband had committed domestic violence against her. She lived at the apartment with her husband, her two children and a roommate, Ametria Douglas. On that occasion, the officers arrested her husband. A few weeks later, the police received another 911 domestic violence call at the same location. This call was made by the roommate’s mother who reported that she heard her daughter screaming for help before the phone was disconnected. Prior to arriving at the location, the police, Officer Craig and Sergeant Toth, among others, were informed that there were two children in the apartment and that no one was answering the phone. Upon their arrival, the officers knocked on the front door. No one answered the phone when dispatch called. When the officers went to a side window, they saw Maggie Emmons standing inside the apartment and asked her to open the door so that they could conduct a welfare check. The officers could also see a man in the apartment, but could not tell who he was. The man told Ms. Emmons to get away from the window.

A few minutes later, a man, later identified as Marty Emmons, opened the front door and stepped outside. Officer Craig, who was standing near the door, asked the man to leave the door open. Mr. Emmons, however, refused to do so and closed the door. Mr. Emmons then attempted to brush past Officer Craig. Officer Craig stopped Mr. Emmons and took him to the ground. Thereafter, Officer Craig handcuffed Mr. Emmons. Officer Craig did not strike Mr. Emmons and did not draw any weapon.

Mr. Emmons, the father of Maggie Emmons, subsequently was arrested for misdemeanor obstruction. Mr. Emmons later sued both Officer Craig and Sergeant Toth for excessive force. Sergeant Toth at no time applied any force to Marty Emmons and was merely present at the scene during the arrest.

The District Court held that the officers had probable cause to arrest Mr. Emmons. The District Court rejected the excessive force claim outright and cited to the body worn camera videos that demonstrated that the officers acted “professionally and respectfully” in the encounter. Since Officer Craig was the only officer that used force, the District Court granted summary judgment to Sergeant Toth on the excessive force claim. In addition, the District Court granted summary judgment to Officer Craig, based on qualified immunity, reasoning that the law did not clearly establish that Officer Craig could not take down Mr. Emmons under the circumstances presented.

Upon appeal to the Ninth Circuit Court of Appeals, the Court reversed and remanded the matter for trial on the excessive force claims against both officers. The Court of Appeals did not disturb the finding that the officers had probable cause to arrest Mr. Emmons and only analyzed the application of force by the officers during the arrest. The Court of Appeals curtly reasoned that “the right to be free of excessive force was clearly established at the time of the events in question.” The Court offered no other reasons to remand the matter to the trial court.

Held: Upon review, the U.S. Supreme Court reversed the judgment of the Ninth Circuit as to Sergeant Toth, and vacated and remanded the matter as to Officer Craig. The Court found that the Ninth Circuit’s decision as to Sergeant Toth was erroneous since Sergeant Toth had never applied any force to Mr. Emmons.

The Supreme Court was also somewhat perplexed by the dearth of qualified immunity analysis by the Ninth Circuit, finding the analysis lacking. The Court then presented the proper, more detailed analysis of qualified immunity as it pertained to Officer Craig. First, the Court found that the clearly established right must be defined with specificity, and not at a high level of generality. The Court specifically pointed out that “it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for a trial on the question of reasonableness.” The Court further stated that the established right must have sufficiently defined contours so that officers would understand when they would be violating that right.

In this case, the Court stated that the Court of Appeals made no effort to explain how any of their cited cases prohibited Officer Craig’s actions. In fact, according to the Supreme Court, the one case that the Ninth Circuit cited in their opinion, Gravelet-Blondin v. Shelton,[14] involved an individual that was passively resistant. The Supreme Court found that the Ninth Circuit failed to explain how that case clearly established that Officer Craig was prohibited from taking Mr. Emmons to the ground and handcuffing him in the underlying encounter. Accordingly, the Supreme Court remanded the case back to the Ninth Circuit and instructed them to conduct a proper analysis of existing legal precedent to determine whether Officer Craig was entitled to qualified immunity.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 2, available at www.jones-mayer.com.


Mere access to privately held information is not in itself sufficient to establish possession or control of that information for purposes of requesting records under the California Public Records Act.

Anderson-Barker v. Superior Court, 2019 Cal. App. LEXIS 55 (2nd Dist. Jan. 22, 2019)

Facts: The Los Angeles Police Department (“LAPD”) uses privately owned companies, described as “Official Police Garages” or OPG’s in this context, to tow and store impounded vehicles. When an LAPD officer needs to impound a vehicle, an OPG is contacted. The officer is required to document the vehicle seizure on a “CHP 180 form.” The OPG enters information regarding the impoundment into a database known as the “Vehicle Information Impound Center” (“VIIC”). The VIIC resides on a server that is owned and maintained by the “Official Police Garage Association of Los Angeles” (OPGLA), a private organization comprised of OPGs. The impounding OPG also scans a portion of each CHP 180 form into Laserfiche, a database that is owned and maintained by an independent private document storage company that OPGLA contracts with to store OPG-related documents.

The terms of the City’s contracts with the various OPGs are the same, only differing on the specific covered service area. Section 14.3 of an OPG contract provides that all “records generated or kept by the OPG” regarding its City towing services are “subject to periodic inspection by [the City],” and that “all data and records … related to the towing or storage services provided under [the] Agreement” must be “made available without notice, [24 hours a day].” Section 14.3 also prohibits OPGs from interfering with, preventing or refusing to permit concerned law enforcement personnel to make an examination, inspection or copy of any record kept by the OPG.

Cynthia Anderson-Barker filed a petition in June 2015 under the California Public Records Act (Government Code section 6250 et seq.; “CPRA”) to compel the City of Los Angeles (the “City”) to disclose electronically stored data relating to vehicles that private towing companies had impounded at the direction of the Los Angeles Police Department. The City argued the CPRA did not apply because it did not possess or control the requested data. The trial court agreed, and denied Anderson-Barker’s petition. Anderson-Barker then filed a petition for writ of mandate seeking an order directing the trial court to vacate its order, and enter a new order directing the City to produce the data.

Held: Reviewing the petition, the California Second District Court of Appeal noted that the CPRA’s intended purpose was to increase freedom of information by giving members of the public access to non-exempt information in the possession of public agencies upon request. To establish an agency has a duty to disclose under CPRA’s section 6253(c), a petitioner seeking public records must show that: (1) the record qualifies as a “public record” within the meaning of Section 6252(e)[15]; and (2) the record is “in the possession of the agency.”[16] The Court noted that the term “possession” was defined for CPRA purposes to “mean[s] both actual and constructive possession.” (Board of Pilot Commissioners v. Superior Court (2013) 218 Cal.App.4th 577, 598.), and that “constructive possession” of records meant “the right to control the records, either directly or through another person.” (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 623.)

The Second District observed that the trial court did not discuss whether VIIC and Laserfiche records qualified as public records, focusing instead on the question of possession. Anderson-Barker contended that the City’s “unfettered access” to the data as described in Section 14.3 in OPG contracts constituted possession. The City admitted it had a contractual right to access the data, but asserted that merely having access to the data did not establish constructive possession. The Court agreed because the evidence suggested that the City did not direct what information OPGs placed into VIIC and Laserfiche databases, and that the City had no authority to modify the data in any way. The Court noted that the City might have a duty under the CPRA to disclose any data it actually extracted from the VIIC or Laserfiche databases, and then used for a governmental purpose. But Anderson-Barker’s did not limit her expansive CPRA request in such a manner. The Second District held that “mere access” to privately held information was not sufficient to establish possession or control of that information and, accordingly denied the petition for writ of mandate.


Government’s interests in controlling crime and ensuring public safety are promoted by keeping firearms out of the hands of unlawful aliens; thus, 18 U.S.C. section 922(g)(5) is constitutional under intermediate scrutiny.

United States v. Torres, 2019 U.S. App. LEXIS 514 (9th Cir. Jan. 8, 2019)

Facts: Victor Manuel Torres was born in Mexico in 1985. Approximately four years later, he, moved with his mother and sister to San Jose, California, to join Torres’s father, who had entered the United States a year earlier. Torres’s parents apparently never had an immigration status through which Torres could qualify for legal status in the United States. Torres was enrolled in school from 1991 until he was expelled in 2000. Torres’s parents sent him back to live in Mexico in 2002, when he was sixteen years old. As an adult, Torres unlawfully entered the United States in 2005. Torres joined his family in San Jose and began working in landscaping, and eventually married a United States citizen in San Jose in 2012. However, Torres never applied for legal status.

In March 2014, Los Gatos Police Department officers, notified of a suspicious vehicle, found Torres with a stolen bicycle in the bed of his truck. Torres consented to a search of his backpack which the officers had seen in the vehicle. The officers found a .22 caliber firearm, what appeared to be two homemade silencers for the firearm, and bolt cutters. Torres was arrested, and later federally indicted in the Northern District of California for one count of being an unlawful alien in possession of a firearm, in violation of 18 U.S.C. section 922(g)(5)(A). The District Court denied Torres’ motion to dismiss the indictment, and he was convicted. The District Court imposed a sentence of twenty-seven months of incarceration followed by three years of supervised release. Torres appealed.

Held: 18 U.S.C. section Section 922(g)(5) makes it unlawful for an alien “illegally or unlawfully in the United States . . . to . . . possess in or affecting commerce, any firearm.” Torres contended on appeal that this provision violated the Second Amendment to the United States Constitution, because it completely destroyed (rather than limited) Second Amendment protections as to an entire class of people, i.e., unlawful aliens. The Ninth Circuit Court of Appeals considered the question of whether Section 922(g)(5) was lawful under the Second Amendment.

The Second Amendment guarantees that “the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Court explained that “the inherent right of self-defense” is central to the rights guaranteed by the Second Amendment. District of Columbia v. Heller, 554 U.S. 570 (2008). However, the individual right to possess and carry weapons “is not unlimited.” Id. at 626. The Second Amendment does not guarantee the right to possess … by every person.” United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012). U.S.C. section 922(g) describes some groups that Congress determined should be prohibited altogether from possessing firearms, like felons or the mentally ill. Those “illegally or unlawfully in the United States” are another such group under the section.

The Ninth Circuit used a two-step test the Circuit had previously adopted in United States v. Chovan (735 F.3d 1127, 1136 (9th Cir. 2013)) to analyze claims that a law violates the Second Amendment. The test “(1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.”

Considering at the test’s first part, the Court pondered the question whether the Second Amendment’s use of the term “the people” included aliens unlawfully in the United States. The Supreme Court, while discussing Fourth Amendment issues in United States v. Verdugo-Urquidez,[17] had described “the people” as used in the First, Second, Fourth, Ninth, and Tenth Amendments as referring to “a class of persons [(1)] who are part of a national community or [(2)] who have otherwise developed sufficient connection with this country to be considered part of that community.” (Italics added.) The second part of Verdugo-Urquidez’s definition might be a basis for including unlawful aliens. However, the Ninth Circuit explained that Heller was the Supreme Court’s “first in-depth examination of the Second Amendment,” and Heller described the Second Amendment as applying to “citizens,” and “belonging to all Americans,” and described its protected right as those for “law-abiding, responsible citizens.” This might support a view that denied Second Amendment rights to unlawful aliens. Yet Heller also block-quoted Verdugo-Urquidez’s definition of “the people” in its opinion approvingly.

The Ninth Circuit’s sister Circuits had differing conclusions as to whether “the people” included unlawful aliens with regards to the Second Amendment, which also suggested an unsettled standard on this issue. The Ninth Circuit ultimately concluded that the unsettled state of the law precluded any definite answer on whether unlawful aliens are included in the scope of the Second Amendment right. The Ninth chose to follow the Tenth Circuit’s approach, which was to assume (without deciding) that unlawful aliens like Torres did fall within the scope of the Second Amendment. The Ninth Circuit then turned to the second element of the Chovan test: determining the appropriate level of scrutiny, and then applying it.

Applying intermediate scrutiny here, the Ninth Circuit explained that a challenged statute would survive intermediate scrutiny if it had both (1) a “significant, substantial, or important” government objective; and (2) a reasonable fit between that objective and the conduct regulated. Chovan, 735 F.3d at 1139. To withstand intermediate scrutiny, a statute simply needed to promote a “substantial government interest that would be achieved less effectively absent the regulation.” Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th Cir. 1998). The Court found that the government’s important interests in controlling crime and ensuring public safety were promoted by keeping firearms out of the hands of unlawful aliens—” who are subject to removal, are difficult to monitor due to an inherent incentive to falsify information and evade law enforcement, and have already shown they are unable or unwilling to conform their conduct to the laws of this country.” These important government interests “would be achieved less effectively” were it not for Section 922(g)(5) (indicating “a reasonable fit”). Thus, the Ninth Circuit Court of Appeals concluded that Section 922(g)(5) survived intermediate scrutiny, and was a valid exercise of Congress’s authority. The Court accordingly affirmed.


  1. Exigent circumstance of inmate disturbances and lockdowns justified jail officials’ denying pretrial detainee plaintiff a bed as officials were prioritizing security needs.

Olivier v. Baca, 2019 U.S. App. LEXIS 1019 (9th Cir. Jan. 11, 2019)

Facts: In July 2006, Maurice Olivier was arrested by the Los Angeles County Sheriff’s Office (“LASO”). On the night of July 12, 2006, Olivier was taken to the Los Angeles County Inmate Reception Center (“IRC”) for processing into permanent housing. At the IRC, Olivier was determined to have health issues and sent to the IRC’s medical screening area, where he waited on a bench for an examination, along with about 100 other people. Due to Olivier’s medical needs, LASO officials determined that he should be properly housed in the Los Angeles Men’s Central Jail (MCJ”). While Olivier was being processed for transfer to MCJ, a series of inmate disturbances and related lockdowns occurred at jail facilities across the Los Angeles County. These events delayed processing at the IRC. Olivier testified that there were not enough benches at the IRC and he had to sleep on the floor without bedding during this period. Olivier was transferred about three and a half days later to MCJ on the afternoon of July 16, 2006.

In October 2008, Olivier brought an action under 42 U.S.C. section 1983 against Sheriff Leroy Baca in Baca’s official and individual capacities, alleging that Baca violated Olivier’s Fourteenth Amendment rights by failing to provide him with a bed during his three-and-a-half day stay at the IRC while he was a pretrial detainee. Baca provided declarations by LASO officials describing jail procedures and staff management during inmate disturbances. The District Court granted summary judgment in Sheriff Baca’s favor, holding that Olivier had not raised a genuine issue of material fact as to whether disturbances by inmates and lockdowns constituted exigent circumstances justifying the floor sleeping. Olivier appealed.

Held: The Ninth Circuit Court of Appeals first explained that under the Fourteenth Amendment’s Due Process Clause, pretrial detainees like Olivier have a right against jail conditions or restrictions that amount to punishment.[18] The Ninth Circuit also reminded that “central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves,”[19] adding that the Supreme Court explained in Bell v. Wolfish[20] that measures to preserve security and order “may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.” Moreover, the Supreme Court explained in another case that involved a Section 1983 claim by a pretrial detainee that “courts must defer to the judgment of correction officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.”[21]

The Ninth Circuit noted that in prior Eighth Amendment cases involving disturbances by prison inmates and lockdowns, the Ninth Circuit had held that such issues could delay detention facility procedures and temporarily restrict certain rights without violating the Eighth Amendment.[22] The Court added that, like prisons, jails are responsible for maintaining internal order, discipline, and security.

Here, the Ninth Circuit held that the Los Angeles Sheriff’s Office was well within the scope of its authority to maintain security when it carried out the lockdowns that delayed Olivier’s transfer to permanent housing, resulting in three-and-a-half days without a bed. The Court explained that the evidence was clear that the LASO during this period had been confronted with emergencies that threatened the safety and security of its facilities. LASO addressed a nearly uninterrupted series of riots and civil disturbances involving hundreds of inmates, and resumed normal operations within a matter of hours after jail officials regained control of their facilities. The Court found that that the jail officials’ response to the security threats was reasonable in its scope and effective in controlling the disturbances. Moreover, Olivier was transferred promptly to permanent housing once the disturbances had been resolved. Considering appropriate deference to correctional facility officials in such matters, the Court concluded there was no evidence suggesting the LASO’s response actions constituted “unnecessary or unjustified response to problems of jail security.”

The Court next held that even if a Fourteenth Amendment violation did occur, the District Court correctly held that Baca was entitled to qualified immunity because the right asserted by Olivier—not being forced to sleep on the floor during a jail lockdown—was not clearly established at the time of the events. None of the cases Olivier cited showed exigent circumstances, as was demonstrated in the case here. The Ninth Circuit accordingly affirmed.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 5, available at www.jones-mayer.com.

  • Plaintiff cannot recover damages for wrongful incarceration under 42 U.S.C. section 1983; although his jury conviction was vacated, plaintiff pled no contest to the same counts, and was resentenced to time served.

Taylor v. Cnty. of Pima, 2019 U.S. App. LEXIS 1545 (9th Cir. Jan. 17, 2019)

Facts: Louis Taylor was convicted in 1972 by an Arizona state court jury of 28 counts of felony murder, on the theory that he had started a deadly fire at a Tucson hotel. While still in prison in 2012, Taylor filed a state post-conviction petition presenting newly discovered evidence: an expert, using new and more sophisticated investigative techniques, concluded that arson did not cause the hotel fire. Under a 2013 plea agreement, Taylor’s original convictions were vacated and Taylor pled no contest to the same counts, was resentenced to time served, and was released from prison.

Taylor then brought a 42 U.S.C. section 1983 action against Pima County and the City of Tucson, alleging violations of his constitutional rights to due process and a fair trial. The County moved to dismiss Taylor’s operative complaint, contending in part that Taylor could not recover damages for wrongful incarceration because all of Taylor’s time in prison was supported by the valid 2013 criminal judgment. The District Court held that Taylor could not recover damages for wrongful incarceration, and granted in part the County’s motion to dismiss.

Held: On interlocutory appeal under 28 U.S.C. section 1292(b), the Ninth Circuit Court of Appeal of Appeals exercised its discretion to review Taylor’s claim for compensatory damages for wrongful incarceration. The Ninth Circuit observed that the United States Supreme Court in Heck v. Humphrey[23] held that a plaintiff in a Section 1983 action may not recover incarceration-related damages for any period of incarceration supported by a valid, unchallenged conviction and sentence.

The Ninth Circuit explained here that while Taylor’s 1972 jury conviction was vacated, his 2013 conviction under the plea agreement remained valid. All of the time that Taylor served in prison was thus supported by the valid 2013 state-court judgment. The state court had accepted the plea agreement and sentenced Taylor to time served. For that reason, even if Taylor could prove constitutional violations regarding the 1972 conviction, he could not establish that the 1972 conviction caused any incarceration-related damages. Although the Court remarked that it “[took] no pleasure in reaching this unfortunate result,” the 2013 conviction caused the entire period of his incarceration as a matter of law. Taylor could not seek by way of Section 1983 to collect damages for the time that he served pursuant to his plea agreement. The Court thus affirmed the District Court’s judgment on this issue.

In his partial dissent, Judge Schroeder wrote that the Court’s decision that Taylor could not recover compensatory damages magnified “an already tragic injustice.” The judge stated that Taylor accepted the 2013 plea offer because his only alternative was to stay in prison and wait for his petition for collateral relief to wend its way through the courts, a process that could take years. Because “Taylor’s second conviction was the product of his desperate circumstances,” the judge’s view was that the majority’s holding unnecessarily “perpetuate[d] an abuse of power that [Section] 1983 should redress.”

  • The constructive custody inherent in the alternative custody program referred to as ‘sheriff’s parole’ involves relatively minimal physical constraint and is therefore insufficient to constitute lawful/      actual custody under Section 4532(b)(1).

People v. Taggart, 2019 Cal. App. LEXIS 64 (5th Dist. Jan. 23, 2019)

Facts: In December 2014 in Kern County, Moonshadow Naomi Taggart entered a plea to buying or receiving a stolen vehicle, and admitted two prison priors. Taggart was sentenced to two years in county jail pursuant to Penal Code section 1170(h), with a scheduledrelease date of October 30, 2015. In April 2015, Taggart was released to an alternative custody program colloquially referred to as “sheriff’s parole.” As a term of her parole, Taggart was ordered not to leave Kern County without permission of the county board of parole commissioners. Taggart never obtained such permission. In June 2015, a “retake/arrest” warrant was issued for her arrest and she was shortly thereafter apprehended out of state and transported back to California without incident.

Taggart was then charged with escape under Penal Code section 4532 (b)(1), with the additional allegation that she suffered four prison priors. The matter was presented to a jury. After the People rested, Taggart moved for acquittal based on insufficient evidence. The motion was denied, and the jury convicted Taggart of felony escape for leaving Kern County without permission while she was on “sheriff’s parole.”

Held: On appeal, Taggart challenged the sufficiency of the evidence to support her conviction for escape, arguing her conduct did not constitute an escape within the meaning of the Section 4352(b)(1) because the statue required actual, not constructive, custody. The People contended that “lawful custody” within the meaning of Section 4532(b)(1) meant all custody, whether actual or constructive.[24] The California Fifth District Court of Appeal explained that “resolution of this question depends primarily on our interpretation of [S]ection 4532.” The Court distilled Section 4532(b)(1)’s relevant language to: “Every prisoner … convicted of a felony … who … is in the lawful custody of any officer or person, … who escapes or attempts to escape from … the custody of any officer or person in whose lawful custody he or she is … is guilty of a felony ….”

After reviewing a series of relevant cases discussing the section’s use of the terms “prisoner” and “lawful custody,” the Court determined that Section 4532 (b)(1) applied when a prisoner escapes from “lawful custody,” and that per People v. Nicholson, lawful custody implies detention or some other significant restraint or deprivation of physical freedom.[25] The Court found that constructive custody inherent in sheriff’s parole involved “relatively minimal physical constraint and is therefore insufficient to constitute custody under this definition.”

The Court also found that the history of amendments to the section suggested the Legislature did not understand “lawful custody” to include all forms of custody outside of a correctional facility, and also that the Legislature knew how to bring specific forms of custody within the reach of the escape statute when it wished to do so. This suggested sheriff’s parole was to be excluded from Section 4532(b)(1)’s scope. Moreover, the Court noted that one of the principles of statutory construction[26] is that a general term or category is “restricted to those things that are similar to those which are enumerated specifically.”[27] Unlike parole, all other forms of custody specifically enumerated in Section 4532(b)(1) involved confinement within a specific facility or residence.

Applying the statutory construction principle here, the Court found further support to conclude that Taggart’s parole did not constitute “lawfulcustody” as that term was used in Section 4532(b)(1). The only physical limitation to Taggart’s parole was that she remain within the county. She was not limited to a specific facility or residence. Nor was she “temporarily in custody outside the walls of a custodial facility,” a circumstance the “‘lawful custody’” provision was intended to address.[28] Taggart’s parole was “therefore dissimilar from the classes of custody enumerated” in Section 4532(b)(1), and her prosecution for escape did not accord with the statute’s legislative purpose.

Finally, the Court added that it could not find, and the People did not cite, any case that applied Section 4532(b)(1) to “an escape from mere constructive custody.” The Court thus found that Taggart’s departure from the county (which she was supposed to stay in per her parole terms) was insufficient to constitute an escape within the meaning of Section 4532(b)(1). The Court concluded that the evidence was insufficient to sustain Taggart’s conviction. Accordingly, the California Fifth District Court of Appeal reversed and remanded for further proceedings.

[1] Arizona v. Gant, 556 U.S. 332, 339 (2009).

[2] Rawlings v. Kentucky, 448 U.S. 98, 111 (1980).

[3] United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004).

[4] Devenpeck v. Alford, 543 U.S. 146. 153 (2004).

[5] Penal Code section 1546, et seq.

[6] 41 Cal.3d 29 (1985).

[7] See Ariz. Rev. Stat. Ann. section 13-2412(A) (“It is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person’s true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime.”); id. section 28-622(A) (“A person shall not willfully fail or refuse to comply with any lawful order or direction of a police officer invested by law with authority to direct, control or regulate traffic.”).

[8] 4 Cal.5th 658 (2018).

[9] Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652–653 (1995).

[10] 569 U.S. 435, 465 (2013).

[11] For more on Buza, please refer to Client Alert Vol 33. No. 10.

[12] Herring v. United States, 555 U.S. 135, 140 (2009).

[13] Murray v. United States, 487 U.S. 533, 537 (1988).

[14] 728 F. 3d 1086, 1093 (9th Cir. 2013).

[15] Section 6252 (e) defines “public record” to mean “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” This definition includes electronic “writings.”

[16] Consolidated Irrigation v. Superior Court, 205 Cal.App.4th 697, 709 (5th Dist. 2012).

[17] 494 U.S. 259 (1990).

[18] Pierce v. Cty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008).

[19] Pell v. Procunier, 417 U.S. 817, 823 (1974).

[20] 441 U.S. 520, 546 (1979).

[21] Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 322-23 (2012).

[22] Noble v. Adams, 646 F.3d 1138 (9th Cir. 2011); Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010).

[23] 512 U.S. 477 (1994).

[24] Constructive custody means custody of a person whose freedom is controlled or restrained by legal authority, but who is not under immediate physical control.

[25] 123 Cal.App.4th 823, 832 (1st Dist. 2004).

[26] The legal principle is referred to as “ejusdem generis.”

[27] People v. Arias, 45 Cal.4th 169, 180 (2008).

[28] In re Culver, 69 Cal.2d 898, 901 (1968).