Courtesy of: James R. Touchstone, Esq.

POLICE CONDUCT/CONSTITUTIONAL LAW

1. A deputy who pointed a loaded gun at a suspect’s head used excessive force but was entitled to qualified immunity.

Thompson v. Rahr, 2018 U.S. App. LEXIS 6191 (9th Cir. Mar. 13, 2018)

Facts: In December 2011, King County Sheriff’s Deputy Pete Copeland, was on patrol in the City of Burien, Washington. After watching Lawrence Thompson commit traffic violations, Copeland pulled him over. Thompson apologized to Copeland but did not provide his driver’s license. He offered Copeland some mail with his name. After running Thompson’s identifying information through a computer, Copeland learned that Thompson’s license had been suspended for an unpaid ticket, and that his most recent felony conviction was for unlawful possession of a firearm. The deputy decided to arrest Thompson for driving with a suspended license. After Thompson exited the vehicle, Deputy Copeland patted him down for any weapons, finding none. Copeland radioed for backup and had Thompson sit on the bumper of Copeland’s patrol car.

Deputy Copeland next conducted an inventory search of Thompson’s car, finding a loaded revolver sitting in an open garbage bag on the rear passenger-side floorboard. After seeing the gun, Copeland decided to arrest Thompson for a felony violation of the Uniform Firearms Act.[1] Another deputy had arrived for backup on the scene, and watched over Thompson as he continued to sit on the bumper of Deputy Copeland’s cruiser. Thompson was about 10- 15 feet from the gun in the back seat of his car, and was not handcuffed.

Deputy Copeland signaled to the deputy watching over Thompson, and then drew his gun. The parties disputed what happened next. Copeland claimed that he assumed a low-ready position, with his gun clearly displayed, but not pointed directly at Thompson. Thompson claimed that Copeland pointed his gun at Thompson’s head, demanded Thompson surrender, and threatened to kill Thompson if he did not. Deputy Copeland directed Thompson to get on the ground, facedown, so that he could be handcuffed. Thompson complied and was handcuffed without incident.

Copeland arrested Thompson for being a felon in possession of a firearm. A Washington state court dismissed the charges after determining that the evidence against Thompson had been gathered in violation of the state constitution. Thompson sued Deputy Copeland and King County under 42 U.S.C. section 1983, alleging Thompson used excessive force when he pointing his gun at Thompson’s head and threatened to kill him. The district court granted Copeland’s motion for summary judgment, and dismissed Thompson’s claims with prejudice. Thompson appealed.

Held: The Ninth Circuit Court of Appeals held that an officer who pointed a loaded gun at a suspect’s head used excessive force, but was entitled to qualified immunity because the law was not clearly established at the time of the incident that the officer’s conduct was unconstitutional under the circumstances that he encountered.

In reaching its conclusion, the Court began by noting that, under Saucier v. Katz,[2] police officers do not have qualified immunity if “(1) the facts ‘[t]aken in the light most favorable to the party asserting the injury’ show that ‘the [officers’] conduct violated a constitutional right’ and (2) ‘the right was clearly established’ at the time of the alleged violation.” The Court observed that its review of a judgment obtained by way of a motion for summary judgment entailed viewing the facts in the light most favorable to the “nonmoving party”, i.e., Thompson. Therefore, the Court proceeded with its analysis assuming as true Thompson’s claim that Copeland pointed his gun at Thompson’s head and threatened to kill him.

1. Violation of Constitutional Right

The Ninth Circuit noted that an allegation of excessive force meant the Constitutional right to be examined was the Fourth Amendment right against unreasonable seizures.[3] The Court applied the three-part application described in Espinosa v. City & Cty. of S.F.[4] to evaluate Thompson’s excessive force claim: “First, we ‘assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted.’…Then, we evaluate the government’s interests by assessing the severity of the crime; whether the suspect posed an immediate threat to the officers’ or public’s safety; and whether the suspect was resisting arrest or attempting to escape….Finally, we ‘balance the gravity of the intrusion on the individual against the government’s need for that intrusion.’”

The Court observed that it had previously held that pointing a loaded gun at a suspect, using the threat of deadly force, was use of a high level of force. The Court further determined the government’s need for such force was relatively low, because Thompson was not close to the weapon in the car, had already been searched, had not resisted or attempted to evade arrest, was sitting on the bumper being watched by the backup deputy, and was compliant throughout the incident. The Court also found that Thompson’s suspected crimes of driving with a suspended license and violating the firearms act were crimes of, at most, moderate severity. The Court further noted that “pointing guns at persons who are compliant and present no danger is a constitutional violation.”[5] Finding that the governmental interests were outweighed by the severity of the intrusion on Thompson’s rights, the Ninth Circuit held that Deputy Copeland’s pointing his gun at Thompson’s head constituted excessive force in the circumstances here, thereby violating Thompson’s constitutional rights.

2. No Violation of a “Clearly Established” Right

The Ninth Circuit observed that “qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). For a right to be ‘clearly established,’ existing ‘precedent must have placed the statutory or constitutional question beyond debate,’ such that ‘every’ reasonable official, not just ‘a’ reasonable official, would have understood that he was violating a clearly established right. Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011) (emphasis added).” The Court of Appeals observed that, under the Supreme Court’s decision in White v. Pauly,[6] qualified immunity protected “all but the plainly incompetent or those who knowingly violate the law,” and that the clearly established law should not be defined at a “high level of generality.”

The Ninth Circuit disagreed with Thompson’s argument that the Circuit’s earlier decisions in Robinson v. Solano Cty.[7] and Hopkins v. Bonvicino[8] required a denial of qualified immunity to Deputy Copeland, finding that their respective facts distinguished those cases from the present case. The Court observed that neither Robinson nor Hopkins involved felony crimes, suspects with known nearby firearms, nor dangerous or exigent circumstances. The Court further noted that the suspects in Hopkins and Bonvicino were in or near their home, as opposed to the traffic stop context faced by Deputy Copeland, a context which the Supreme Court viewed as “especially fraught with danger to police officers”.[9] As such, the Ninth Circuit concluded that neither Hopkins nor Bonvicino involved facts sufficiently similar to those in the present case to put the constitutional question beyond debate, as required to defeat qualified immunity.

Addressing the facts faced by the deputy here, the Court observed that the arrest was a vehicle stop at night, for a felony, upon a suspect who already had a prior felony conviction, who was not handcuffed, who was significantly heavier and taller than the deputy, and who was a mere 10-15 feet away from a loaded gun. The Court determined that the situation was still a “fluid, dangerous” one that posed potential danger to the officers. The Ninth Circuit thus found that qualified immunity applied because a reasonable officer in Deputy Copeland’s position would not have known that he was violating a clearly established constitutional right by pointing a gun at Thompson in the situation he encountered.

The Court thus concluded that, although Deputy Copeland’s use of excessive force violated Thompson’s constitutional rights, the deputy was entitled to qualified immunity because the Copeland was not “plainly incompetent” nor did he “knowingly violate the law” when he acted as he did. Accordingly, the Court affirmed the district court’s grant of summary judgment.

1. Seizure and holding by CHP of antique car violate due process of person in possession of the car, where CHP cannot affirmatively demonstrate by preponderance of evidence that the car was embezzled or stolen.

Lawrence v. Superior Court, 2018 Cal. App. 5th 513 (1st Dist. 2018)

Facts: In March 2015, petitioner Brandon Lawrence, a broker and dealer of classic cars, arranged to buy for an investor a rare 1947 Cisitalia car from a Japanese company called Ohtomi Kensetsu Kabushiki Kaisha (“Ohtomi”). After the car was shipped, Lawrence oversaw efforts to restore it to its original configuration and appearance. In late 2016 or early 2017, a private investigator, on behalf of a Japanese citizen named Kiyoshi Takihana, filed a stolen vehicle report with the CHP. Takihana had owned the Cisitalia before Ohtomi. The report claimed that Ohtomi had stolen the car from Takihana two years before. In March 2017, the CHP impounded the car to an undisclosed location and where it continued to be held. Lawrence provided evidence to the CHP that Takihana’s complaint was that rather than the car being stolen, Ohtomi had not paid the full amount due for the car. Lawrence also informed the CHP that the car required extraordinary care and handling because it was fragile. After a four-month investigation, the CHP decided that the dispute was essentially civil in nature, but would not be returning the car to Lawrence without a valid court order. Lawrence petitioned for a writ of mandate in the superior court to compel the CHP to return the car to his possession. The court denied his petition without prejudice. Lawrence petitioned the appellate court by writ of mandate to compel the superior court to have the CHP immediately return the car to him.

Held: The California First District Court of Appeal held that precedent required the CHP to return the 1947 Cisitalia to Lawrence. The Court noted that, under Cal. Evid. Code section 637, “things which a person possesses are presumed to be owned by him.” Observing that both Lawrence and the CHP agreed that Ensoniq Corp. v. Superior Court[10] controlled, the Court explained that “Ensoniq is clear that ‘due process requires the People to prove by a preponderance of the evidence that the seized property was stolen or embezzled, in a situation where no charges are pending and no conviction has been obtained.’ (Ensoniq, at p. 1549.) In this case, the CHP has made no effort whatsoever to prove that the car was stolen. Indeed, in the court below, the CHP presented no evidence at all…” The Court noted that the CHP did not contradict Lawrence’s evidence showing that he legitimately bought the car.

The Court of Appeal further explained that, under Ensoniq, it was “immaterial whether a third party considers itself entitled to the property.” Nor did it matter that the CHP could not resolve the conflicting claims of ownership, because the ownership issue would have to be decided in a separate proceeding, after the CHP had complied with its due process obligation to return the car to Lawrence.

The CHP had also argued at the lower court level that returning the car to Lawrence would potentially void the immunity granted to it under Cal. Gov. Code section 821.6.[11] The Court of Appeal disagreed, explaining that because the CHP was conducting a legitimate law enforcement investigation when it seized the car, Section 821.6 immunity applied to the CHP’s conduct. The Court added that the Court had “effectively absolved” the CHP of responsibility for the outcome by now ordering the CHP to return the car to petitioner Lawrence in the current case.

Because the CHP had failed to prove by a preponderance of the evidence that the car was stolen, the Court concluded that the CHP must return the car to Lawrence’s possession. The Court directed the superior court to (1) vacate its order continuing the car’s storage at its current location and (2) enter a new and different order granting the writ and returning actual possession of the seized Cisitalia to petitioner Lawrence.

1. Probationer subject to search condition may not challenge officer’s search, though officer was unaware of search condition, where officer would have known of condition but for probationer’s dishonesty.

People v. Mathews, 21 Cal. App. 5th 130 (1st Dist. 2018)

Facts: In the evening of September 21, 2013, Officer Keith Ballard-Geiger and Officer Pantoja of the San Leandro Police Department were dispatched to the scene of a robbery after receiving a report of “a possible shooting.” Ballard-Geiger later testified that upon their arrival at the scene in San Leandro, dispatch reported that there were two possible male suspects and that “a shooting victim in a silver vehicle had possibly left the scene.” Dispatch also advised the officers that there was a shooting victim at Highland Hospital in Oakland, and they were told to go there.

Hospital video showed that a silver sedan had dropped off Damari Mathews at Highland Hospital minutes before the officers arrived at the hospital at 5:52 p.m. There, the officers met an Alameda County Sheriff’s Department deputy who told them that the patient who “had been dropped off with the gunshot wounds” said he was “Omari Johnson.” While Officer Pantoja radioed for a record check on that name, Officer Ballard-Geiger called the patrol sergeant, who told him that an armed robbery had actually occurred and that one of the suspects might have shot himself fleeing the scene.

Ballard-Geiger then went to the trauma room where he met the patient “with the gunshot wounds.” Mathews falsely identified himself to the officer as “Damari Johnson.” After this point, the timing is unclear. The officer observed a perforation in Mathews’s scrotum and a wound to his shin. The officer also searched a bag that hospital staff identified as Mathews’s clothing, which included a pair of jeans with blood in the crotch area and a small, bloodstained hole in the shin area. Believing the patient was possibly involved with the robbery and that he might have shot himself, Ballard-Geiger ran a record check on “Damari Johnson” at 6:33 p.m. The officer did not remember whether he ran the check immediately after he got the false name from Mathews, or sometime in the next twenty minutes. At 6:36 p.m., Ballard-Geiger received the result of the “Damari Johnson” check which was inconclusive. Questioned later in a hospital hallway, Mathews finally admitted his true name and date of birth to Ballard-Geiger. After running a check on the correct name, the officer learned at 6:41 p.m. that Mathews was a probationer subject to a warrantless search condition. About this time, the officer arrested Mathews for robbery. Officer Ballard-Geiger left the hospital sometime after 7:00 p.m.

Officer Ballard-Geiger testified that it was sometime after Mathews had told him that his name was “Damari Johnson” and also sometime after Mathews was moved from the trauma room to the hallway was at the hospital, that he seized some of Mathews’s belongings, including a cell phone, that hospital staff had stored in a safe. The officer testified that he did not remember exactly when he seized this evidence. The officer’s testimony was inconsistent as to whether he seized the items before or after he knew about Mathews’s search condition, and also as to whether the seizure was before or after he arrested Mathews. A later forensic examination of the phone revealed that it was used in the vicinity of the robbery to make a call at 5:40 p.m.,[12] and then the phone traveled from the victim’s neighborhood to the vicinity of Highland Hospital.

Mathews was charged with second degree robbery and firearms offenses. Before trial, Mathews moved to suppress evidence obtained at the hospital, arguing that his Fourth Amendment rights were violated. The trial court denied his motion, and a jury convicted Mathews of all the charges and sentenced him to 13 years in prison. Mathews appealed, arguing the trial court erred by denying his motion.

Held: The First District Court of Appeal held that when a probationer gives a false name to a police officer, and a record check of that name fails to reveal that the probationer is in fact subject to a search condition, the probationer is estopped from challenging the legality of an ensuing search or seizure that would have been authorized had the officer been aware of the condition.

The Court explained that the Fourth Amendment protects people against unreasonable searches and seizures. Citing People v. Suff,[13] the Court added that a warrantless search was “presumed to be unreasonable.” Unless the prosecution could show a legal justification, evidence obtained from the search or seizure would normally be excluded, under Wong Sun v. United States.[14] Under People v. Woods,[15] the Court observed, one such justification was a search or seizure conducted pursuant to consent, such as consent given by a probationer. Probationers who accepted probation conditions “may validly consent in advance to warrantless searches [or seizures] in exchange for the opportunity to avoid service of a state prison term.”[16]

The Court noted that, under People v. Bravo,[17] “[u]sually, an officer must be aware of a search condition for it to justify proceeding without a warrant.” Here, however, the Court found that the factually similar People v. Watkins[18] applied. In Watkins, the Third District Court of Appeal held that even though an officer was not aware of the defendant’s probationary search condition when he performed the search, the defendant was estopped[19] from challenging the legality of the search as a probation search because the defendant had concealed that he was subject to the condition by lying about his identity.

Considering the parallel factual circumstances in Watkins and the present case, the First District Court determined that estoppel was triggered at the point in time when an officer received the results from a record check based on a false name. The Court reasoned that prior to this point in time, the false name would not have prevented the officer from discovering his search condition. Applying this reasoning and Watkins to Mathews’ situation in the present case, the Court found that estoppel here was triggered at 6:36 p.m., when Officer Ballard-Geiger got the “Damari Johnson” results. Viewing the evidence in the light most favorable to the trial court’s disposition,[20] the Court accepted the officer’s testimony that that he ran the check on “Damari Johnson” before he took physical custody of the phone. Further, the Court found that Ballard-Geiger must have seized the cell phone after he would have learned of Mathews’s search condition if Mathews had not given him a false name. The Court found that, under Watkins, Mathews was estopped from his Fourth Amendment challenge of the admission of the cell phone and resulting evidence.

Accordingly, the Court of Appeal concluded that the trial court properly denied Mathews’ motion to suppress the cell phone and resulting evidence, and affirmed (the Court remanded for firearm offense considerations).

1. An arresting officer must at least ‘attempt’ to provide a disruptive, drunk arrestee with requisite warning that driver’s license will be suspended if driver refuses chemical testing.

Munro v. Department of Motor Vehicles, 21 Cal. App. 5th 41 (6th Dist. 2018)

Facts: Responding to a report of midnight single-vehicle collision, an officer observed plaintiff Munro emerging from the driver’s seat of an extremely damaged SUV vehicle. The officer noticed that Munro was disoriented, moved unsteadily, was red-eyed, slurred his speech, and smelled of alcohol. Munro initially claimed that he had consumed “two drinks, probably.” Though unsteady, Munro refused the officer’s request that he lean on the car, so the officer handcuffed Munro and sat him down. Munro denied being the vehicle’s driver, then denied drinking any alcohol. The officer tried to conduct a field sobriety test, but Munro closed his eyes instead. The officer read Munro the preliminary alcohol screening admonition, and Munro refused to take the test. About 20 minutes after arriving, the officer arrested Munro pursuant to Veh. Code section 23152, subd. (a) on suspicion that he was driving under the influence of alcohol.

Munro told the officer several times that he would be refusing post-arrest chemical testing. California Veh. Code section 23612, subd. (a)(1)(D) requires an arresting officer to warn a person arrested for suspicion of DUI that refusing to submit to a chemical test to determine the blood alcohol content will result in a one-year suspension of the person’s privilege to operate a motor vehicle, among other consequences. Although the officer noted his intent to do so in his report, the officer did not read Munro the chemical test refusal admonition. Munro became physically uncooperative thereafter. Among other things, he resisted keeping his handcuffed hands behind him, contorted his body to avoid being settled in the patrol car backseat, kicked the rear window of the car, and tried to kick other officers who came to assist before the officers finally restrained Munro. 30 to 35 minutes elapsed between the officer responding to the scene and Munro being restrained. Munro was never read the chemical test refusal admonition by the arresting officer. On the DMV chemical test refusal admonition form, the officer wrote “unable to read due to combative state of subject.”

A trial court denied Munro’s petition for a writ of mandate challenging a hearing officer’s decision to uphold the DMV’s suspension of Munro’s driver’s license for refusing the chemical test. The hearing officer had said that Munro was so disruptive and combative that the arresting officer “decided it was futile to even attempt” to give the chemical test refusal admonition. Munro appealed.

Held: The Sixth District Court of Appeal of California held that the Vehicle Code required an arresting officer to at least attempt to provide the required chemical test refusal admonition, even to a disruptive person. The Court reversed the trial court’s decision.

 The Court observed that “[c]ourts have consistently required relatively strict compliance with the duty to admonish suspected drunk drivers about the consequences of refusing chemical testing,” In Thompson v. Department of Motor Vehicles,[21] a Court of Appeal reversed a license suspension because evidence showed a suspected drunk driver could not hear the admonition because it was drowned out by sound from a police radio. In Noli v. Department of Motor Vehicles[22] and Morphew v. Department of Motor Vehicles,[23] officers gave or tried repeatedly yet unsuccessfully to give the admonition to combative suspects who claimed the respective officers failed to warn as required. Yet in both cases, the Sixth District noted, those courts held that arresting officers fulfilled their Section 23612 requirements, because they either gave or at least attempted to give the chemical test refusal warning. Summarizing its precedent review, the Court determined that “there is a material difference between attempting to admonish an uncooperative suspect and the invited conclusion here that compliance with a statutorily mandated admonition was altogether unnecessary because of Munro’s disruptive and combative behavior.” Because it was undisputed that Munro’s arresting officer made no attempt to provide the warning, the Sixth District concluded that the license suspension must be reversed.

1. Courts have an obligation to construe pro se filings liberally, particularly in civil rights cases.

Byrd v. Phoenix Police Dept., 2018 U.S. App. LEXIS 6575 (9th Cir. Mar. 16, 2018)

Facts: Charles Byrd alleged that two Phoenix Police Department officers stopped him for riding a bicycle without a headlight, searched him and his belongings, and then “beat the crap out of” him. He alleged further that this beating caused serious injuries, including the loss of seventy percent of his vision. Byrd later was sentenced to ten years in prison on a drug charge. As an Arizona state prison inmate in December 2015, he filed a pro se[24]         complaint seeking damages under 42 U.S.C. section 1983 for constitutional rights violations. Ultimately, the district court dismissed Byrd’s amended complaint without leave to amend, finding Byrd’s beating description as “too vague and conclusory” and determining that further chances to amend would be “futile.” Byrd appealed the dismissal pursuant 28 U.S.C. section 1915A,[25] arguing excessive force and other claims.

Held: The Ninth Circuit Court of Appeals reversed the trial court’s dismissal, finding that Byrd alleged sufficient facts to state a claim of excessive force. The Court began by explaining that, under Nordstrom v. Ryan,[26] a prisoner’s complaint must have “sufficient factual matter” to state a claim that is plausible on its face, in order to survive Section 1915A review. The Court added that, according to Bretz v. Kelman,[27] “‘we have an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.’”

The Court examined Fourth Amendment reasonableness standards in excessive force cases. Citing Smithart v. Towery,[28] the Court found that “Byrd’s use of a colloquial, shorthand phrase [i.e., “beat the crap out”] makes plain that Byrd is alleging that the officers’ use of force was unreasonably excessive; this conclusion is reinforced by his allegations about the resulting injuries,” like his claim of losing seventy percent of his vision. Finding Byrd’s allegation avoided language that was “too vague and conclusory,” the Court concluded that his complaint alleged sufficient facts to state an excessive force claim, and his other claims were not barred. Accordingly, the Court reversed and remanded for further proceedings.

1. Warrantless search valid under the automobile exception where probable cause existed; that the vehicle was two blocks away from the suspect was immaterial.

People v. Johnson, 2018 Cal. App. LEXIS 267 (2nd Dist. Mar. 28, 2018)

Facts: In May 2016, Los Angeles narcotics police officers monitoring a housing project on closed circuit television observed a woman approach a man later identified as Corey Johnson. Officers saw Johnson pour off-white, rock-like substances from a clear plastic bag into one hand, which he extended. The woman took one of the solids from Johnson, while Johnson took an apparent $5 bill. After the apparent drug transaction, they separated. While one officer continued watching the television feed, others left to try to apprehend Johnson. The viewing officer saw Johnson walk to a car and drive away. The officer relayed the car’s description and license plate number to the departed narcotics officers. A short time later, the viewing officer saw Johnson return, park the car inside the housing development, and walk away about two blocks away from the area. There, he was met by two of the narcotics officers who learned of Johnson’s location from the viewing officer. After they arrested Johnson, one narcotics officer searched Johnson, finding car keys but no drugs or money. The two officers went to the car parked two blocks away, and one officer saw a small bag in the front passenger seat apparently containing marijuana. He then informed the other officer. One of the two officers searched the automobile, finding a $5 bill; an EBT card with Johnson’s name on it; and, hidden in the rear passenger door armrest, another bag containing off-white solids, later determined to be 1.37 grams of cocaine base.

Johnson pleaded not guilty on drug charges and moved to suppress the evidence discovered during the warrantless search of his car, under Pen. Code section 1538.5. The trial court denied his motion. Later pursuant to a negotiated agreement, Johnson plead no contest to one of the drug charges, and was sentenced to an eight-year state prison term. Johnson appealed, contending that the motion to suppress should have been granted because the warrantless search of his car was neither (1) a valid search incident to his arrest, nor (2) supported by probable cause to believe the car contained contraband or evidence of criminal activity.

Held: The Second District Court of Appeal held that the warrantless search of the car was valid under the automobile exception to the warrant requirement because probable cause supported the search, regardless of the fact that the car was two blocks away from where the arrest occurred.

The Court opened its discussion by observing that Pen. Code section 1538.5, subd.(a)(1)(A) states that “[a] defendant may move to suppress evidence on the ground that “[t]he search or seizure without a warrant was unreasonable.” The Court noted that a warrantless search was presumed to be unreasonable, and that the Court would exercise its independent judgment to determine on the facts whether the search or seizure was reasonable under the Fourth Amendment.

Search of an automobile incident to arrest

 The Court explained that the United State Supreme Court’s decision in Chimel v. California[29] established the search incident to arrest doctrine, which made it entirely reasonable to search not only the arrestee’s person, but also the area “within his immediate control”—interpreting that phrase to mean the area from within which the arrestee might gain possession of a weapon or destructible evidence. The high court’s decisions in N.Y. v. Belton[30] and Thornton v. United States[31] further extended the search incident principle to an arrestee’s vehicle, including “recent occupants” of a vehicle who had stepped out of the vehicle already.

Finally, the high court in Arizona v. Gant[32] established a new test under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains evidence relevant to the crime of arrest. The high court in Gant noted that the second prong of the test flowed not from Chimel, but from Justice Scalia’s concurrence in Thornton.[33] Where neither justification is present, “a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” (Gant, at p. 351.).

Discussing Thornton, the Second District noted the search incident doctrine’s focus on officer safety and evidence destruction concerns. From Thornton: “[T]he arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle. … A custodial arrest is fluid and ‘[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress and uncertainty…” Discussing Justice Scalia’s concurrence in Thornton, the Second District noted that it was expressly adopted by the high court in Gant, and that it was predicated on the reasonableness of a search for evidence “when and where” the perpetrator of a crime was lawfully arrested. It was those searches, “permitted by Justice Scalia’s opinion” when based on a reasonable belief the vehicle contained evidence relevant to the crime of arrest, that the Gant majority concluded “are reasonable for purposes of the Fourth Amendment” as incident to a lawful arrest.

Applying this analysis to the present case, the Second District concluded that the officer’s search of Johnson’s automobile was not a valid search incident to Johnson’s arrest because the search of Johnson’s car, parked two blocks away from where he was arrested, did not occur “when and where” he was lawfully arrested.

Probable cause

 The Second District next turned to Johnson’s probable cause claim. The Court observed that probable cause existed when, considering the totality of the circumstances, the known facts and circumstances were sufficient such that a reasonable officer would believe that contraband or evidence of a crime would be found. The Court observed that Gant was limited to a vehicle’s “recent occupants,” but other established exceptions to the warrant requirement enabled vehicle searches. Under the automobile exception, officers could search a vehicle without a warrant if it was readily mobile and probable cause existed to believe it contained contraband or evidence of criminal activity.[34] Johnson had claimed that observing an unknown amount of marijuana in a plastic bag did not give the officers probable cause to believe his vehicle contained contraband or evidence of a crime, because then-current law allowed for possession of small amounts of marijuana and transporting marijuana intended for personal use was not illegal.

Rejecting this argument, the Court noted several facts: the officers had witnessed on closed circuit television Johnson exchanging one of multiple off-white solids that they saw in the clear plastic bag that he possessed for a $5 bill from the woman; when they searched Johnson after his arrest, they found no drugs, nor the $5 bill; the officers were aware that Johnson got in his car right after his transaction with the woman. The Court found that the officer who searched the car had a “substantial basis” to believe that Johnson left the plastic bag with the remaining off-white solids and the $5 bill he received in that transaction in the car, and that a search would reveal contraband or evidence of criminal activity. The Court concluded that there was probable cause to search the car under the automobile exception to the general prohibition on warrantless searches. Accordingly, the Court affirmed the trial court’s decision denying Johnson’s motion to suppress.

PUBLIC EMPLOYEES

1. Temporary disability benefits may not be awarded for time periods that extend beyond five years from the date of a worker’s injury.

County of San Diego v. Workers’ Comp. Appeals Bd., 21 Cal. App. 5th 1 (4th Dist. 2018)

Facts: On July 31, 2010, Kyle Pike, while employed as a County of San Diego deputy sheriff, suffered a shoulder injury. In May 2011, Workers’ Compensation Appeals Board (“the Board”) granted Pike a 12 percent permanent disability award. On May 26, 2015, Pike petitioned to reopen the matter, claiming his shoulder injury had gotten worse. He sought temporary total disability benefits and other benefits pursuant to California Labor Code section 4850 that would run through August 18, 2016. The County of San Diego (“the County”) contended that Labor Code section 4656, subdivision (c)(2) entitled Pike to benefits only until five years after his July 31, 2010 injury, meaning until July 31, 2015. A workers compensation judge awarded benefits according to Pike’s claim. A panel of the Board denied the County’s petition for reconsideration and affirmed the judge’s decision. The County petitioned for review to the Fourth District Court of Appeal of California.

Held: The Fourth District held that the Board erred in concluding that it could award Pike Section 4850 and temporary total disability payments for periods of disability occurring more than five years after Pike’s injury, because Section 4656, subdivision (c)(2) set the limit to five years. The Court explained that the plain language of Section 4656, subdivision (c)(2) states: “Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.” The Court determined that the legislative history of the statute supported this same position. The Court added that a nearly identical restriction in former Section 4656 was deemed by the court in Radesky v. City of Los Angeles[35] to limit benefits to the same five-year maximum post-injury, which supported the Court’s view in the present case. The Court noted that while it would ordinarily defer to the Board’s interpretation of a workers’ compensation law, the Board’s interpretation was “clearly erroneous” here in offering benefits beyond the aforementioned five-year limit, and thus unworthy of deference. Accordingly, the Court annulled the Board’s denial of the County’s petition and remanded to the Board to grant the petition.

1. Trial court does not err by refusing to offer jury instruction pertaining to lead fire chiefs, where plaintiff in age discrimination suit was a division chief.

Corley v. San Bernardino County Fire Protection District, 21 Cal. App. 5th 390 (4th Dist. 2018)

Facts: After a long career as a firefighter with the U.S. Forest Service, plaintiff George Corley accepted a battalion chief position in 2003 with the San Bernardino County Fire Protection District (“the District”). He was promoted to division chief two years later. Throughout his employment with the District, there was no record of any disciplinary actions towards him, and he received numerous awards, and verbal approval from a former District fire chief. In his 2010 performance evaluation, Corley received an overall rating of “exceeds standards.” Mark Hartwig, the District’s fire chief since May 2011, fired Corley in February 2012. Corley was then 58 years old, the oldest of the District’s six division chiefs. Hartwig proffered “incompatible management style” as the reason for termination. Corley filed an age discrimination action under the California Fair Employment and Housing Act[36] against the District. The trial court held a jury trial which resulted in the jury rendering a special verdict in which it found that Corley’s age was a substantial motivating reason for the District’s termination of his employment and awarded damages for lost earnings. Corley was awarded almost $600,000 in damages. The District appealed, arguing that the trial court erred when it denied the District’s request for the court to instruct the jury pursuant to Cal. Gov. Code section 3254(c), part of the “Firefighters Procedural Bill of Rights Act.”[37] The District contended that Section 3254(c)’s language applied to Corley as a division chief, and wanted the jury to be instructed accordingly.

Held: Section 3254(c)[38] pertains to the removal of a “fire chief.” The Fourth District Court of Appeal held that the trial court did not err in denying the district’s request to instruct the jury pursuant to Section 3254(c) because that section only applied to a jurisdiction’s “fire chief” and Corley was never the District’s fire chief. Citing Yohner v. California Dept. of Justice[39] to describe the well-established rules of statutory interpretation, the Court explained that to determine legislative intent, the first step was to examine the words themselves in their “ordinary and usual meaning.” If the language was unambiguous, then the plain meaning of the statute governs. If there was ambiguity in its interpretation, the context in which the language was used was next inspected. The Court noted that other potential factors for possible consideration included the statute’s intended goals or problems to be remedied, the legislative history, the statutory framework of which the statue is a part, and public policy issues.

Applying these steps to Section 3254 (c), the Court noted that the statute refers to “a fire chief” without reference to “deputy chiefs,” “assistant chiefs,” “division chiefs” or the like. Further, the section provides no definition of the term “fire chief,” as might be expected if the statute were meant to apply to any position with the word “chief” in it. Also, the final sentence of section 3254(c) (see footnote 28) strongly suggested to the Court that the term “fire chief” refers to a single position, namely the “job of fire chief” of a jurisdiction.

Though failing to discover any textual ambiguity, the Court nevertheless turned to Section 3254(c)’s context and history. After reviewing Robinson v. City of Chowchilla,[40] the Court determined that the legislative history of the Firefighters Procedural Bill of Rights Act showed that it was clearly modeled after the Public Safety Officers Procedural Bill of Rights Act (“POBOR”).[41] Section 3254(c) was correspondingly modeled after POBOR’s Section 3304(c), whose legislative history revealed that its text applied to a single “Chief of Police.” The Court found these parallels compelling in determining that Section 3254(c) term “fire chief” did not encompass a division chief like Corley.

The Court thus concluded the trial court properly refused to instruct the jury pursuant to the district’s proffered instruction modeled on Section 3254(c). Accordingly, the Court of Appeals affirmed.

[1] Wash. Rev. Code section 9.41.040.

[2] 533 U.S. 194, 201 (2001).

[3] Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per curiam).

[4] 598 F.3d 528, 537 (9th Cir. 2010).

[5] Baird v. Renbarger, 576 F.3d 340, 346 (7th Cir. 2009).

[6] 137 S. Ct. 548, 551 (2017).

[7] 278 F.3d 1007 (9th Cir. 2002).

[8] 573 F.3d 752 (9th Cir. 2009).

[9] Arizona v. Johnson, 555 U.S. 323, 330 (2009).

[10] 65 Cal. App. 4th 1537 (6th Dist. 1998).

[11] “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”

[12] Officer Ballard-Geiger testified that the officers were dispatched to the robbery scene at 5:44 p.m. on that day.

[13] 58 Cal.4th 1013, 1053 (2014).

[14] 371 U.S. 471 (1963).

[15] 21 Cal.4th 668, 674 (1999).

[16] Id. at p. 674.

[17] 43 Cal. 3d 600. 610 (1987).

[18] 170 Cal.App.4th 1403 (2009).

[19] Estoppel describes a situation where a person’s prior conduct or statements prevents them from legitimately asserting a claim or right that contradicts what they said or did before. This includes, among other things, false representation or concealment – as was the case here when Mathews gave a false name, thereby concealing his probationary warrantless search condition from the police.

[20] As required of the Court when reviewing the denial of a suppression motion.

[21] 107 Cal. App. 3d 354, 358–361 (1980).

[22] 125 Cal. App. 3d 446 (1981).

[23] 137 Cal. App. 3d 738 (1982).

[24] Prisoners often file pro se, meaning without legal counsel, advocating on their own behalf.

[25] Section 1915A: “(a) Screening. The court shall review…a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for dismissal. On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint–

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

(c) Definition. As used in this section, the term “prisoner” means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”

[26] 762 F.3d 903 (9th Cir. 2014).

[27] 773 F.2d 1026 (9th Cir. 1985).

[28] 79 F.3d 951, 952 (9th Cir. 1996).

[29] 395 U.S. 752, 763 (1969).

[30] 453 U.S. 454 (1981).

[31] 541 U.S. 615 (2004).

[32] 556 U.S. 332 (2009).

[33] 541 U.S. at page 632.

[34] Pennsylvania v. Labron, 518 U.S. 938, 940 (1996).

[35] 37 Cal.App.3d 537, 542 (1974).

[36] Gov. Code, section 12900 et seq.

[37] Gov. Code section 3250 et seq.

[38] “A fire chief shall not be removed by a public agency or appointing authority without providing that person with written notice, the reason or reasons for removal, and an opportunity for administrative appeal.

For purposes of this subdivision, the removal of a fire chief by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, or for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute ‘reason or reasons.’”

[39] 237 Cal. App. 4th 1, 7–8 (2015).

[40] 202 Cal. App.4th 368 (2011).

[41] Cal 3300 et seq.