Courtesy of James R. Touchstone, Esq.


  1. U.S. Supreme Court concludes that a driver in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy.

Byrd v. United States, 2018 U.S. LEXIS 2803 (U.S. May 14, 2018)

Facts: In September 2014, Latasha Reed rented a car from a car rental facility. The rental agreement she signed and initialed stated that “the only ones permitted to drive the vehicle other than the renter are the renter’s spouse, the renter’s co-employee … or a person who appears at the time of the rental and signs an Additional Driver Form…” The rental paperwork also stated, “PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT. THIS MAY RESULT IN ANY AND ALL COVERAGE OTHERWISE PROVIDED BY THE RENTAL AGREEMENT BEING VOID AND MY BEING FULLY RESPONSIBLE FOR ALL LOSS OR DAMAGE, INCLUDING LIABILITY TO THIRD PARTIES.”

Though Reed did not list an additional driver, when she left the facility she gave the rental car keys to Terrence Byrd. Later that day, Byrd headed for Pennsylvania without anyone else in the rental car. Hours later, a Pennsylvania State Trooper pulled Byrd over for a traffic infraction, and was then joined by another trooper. The troopers discovered that Byrd had prior drug and weapons convictions, the car was a rental and that Byrd was not an authorized driver of the car according to the rental agreement. Byrd mentioned he had a marijuana cigarette in the car. The troopers told Byrd they did not need his consent to search the car because he was not on the rental contract. The troopers searched the vehicle and found body armor and 49 bricks of heroin during the search.

Byrd was charged with various federal crimes. Byrd moved to suppress the evidence as the fruit of an unlawful search. The District Court denied the motion. The Third Circuit Court of Appeals affirmed. Both courts found that Byrd lacked a reasonable expectation of privacy in the car because he was not listed on the rental agreement. Neither Court engaged in making a determination concerning probable cause for the search, apparently deeming it unnecessary under the circumstances. The United States Supreme Court granted review to address the question of whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an authorized driver on the rental agreement.

Held: The Court initially explained that the right to be free from unreasonable searches and seizures was enshrined in the Fourth Amendment, adding that “the Court has viewed with disfavor practices that permit ‘police officers unbridled discretion to rummage at will among a person’s private effects.’ Arizona v. Gant, 556 U. S. 332, 345, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).” The Court stated that the question before it was “whether the person claiming a constitutional violation ‘has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.’ Rakas v. Illinois, 439 U. S. 128, 133, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Answering that question require[d] examination of whether the person claiming the constitutional violation had a ‘legitimate expectation of privacy in the premises’ searched. Id., at 143, 99 S. Ct. 421, 58 L. Ed. 2d 387.”

The Court noted that property concepts were instructive in determining the presence or absence of the privacy interests protected by [the Fourth] Amendment. The Court observed that a significant right attaching to property was the right to exclude others, and that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.”

The Government contended that any drivers who were not listed on the rental agreement lacked an expectation of privacy. The Court, however, rejected this view on Fourth Amendment protections, stating that this viewpoint was too restrictive. The Court also disagreed with Byrd’s argument that a sole occupant of a rental car always had an expectation of privacy. The Court noted that this argument could apply to car thieves who had possession and control of a vehicle, and others who should not have such an expectation of privacy.

The Court viewed Byrd’s situation similar to that presented in Jones v. United States,[1] in which the Court found that the defendant had a reasonable expectation of privacy in his friend’s apartment because the defendant “had complete dominion and control over the apartment and could exclude others from it” while the friend was absent. In both contexts, the Court determined, a person would have the same expectation of privacy that came with the right to exclude others.

The Government also argued that a privacy expectation did not validly attach to Byrd because the rental agreement was “void” due to Byrd’s unauthorized use of the rental car. However, the Court determined that the agreement said only that insurance coverage would be voided, not the total agreement. Further, the Court highlighted “innocuous reasons” why an unauthorized driver might drive a rental car, such as when the authorized driver was drowsy or inebriated. The Court stated that agreement “breaches” of that sort would not be expected to diminish the unauthorized driver’s expectation of privacy under those conditions.

The Court determined that a crucial factor in assessing the expectation of privacy was the concept of lawful possession. Rakas clarified that “wrongful” presence at the scene of a search would not permit a defendant to validly object to the legality of the search. A car thief, whether in sole possession of the car or with passengers, for example, would not have a reasonable expectation of privacy in a stolen car. The Government also argued that probable cause justified the search, even if Byrd had a reasonable expectation of privacy that was violated. The Supreme Court also left this question for remand because it was not reached by the lower courts because they had already concluded, as an initial matter, that Byrd lacked a reasonable expectation of privacy in the rental car. The Court noted that the Third Circuit had discretion as to the order in which the remanded questions were best addressed.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 13, available at www.jones-mayer.com.

  1. Electronic equipment search probation condition held reasonable.

In re Juan R., 22 Cal. App. 5th 1083 (1st Dist. 2018)

Facts: In March 2017, fourteen-year old Juan R. was, along with four other juveniles, recorded on video beating and robbing another person. According to a probation department report, Juan R. was chronically truant, had poor grades, had twice been suspended from school, and disciplined for vandalism and sexual harassment. Several of the other juveniles who participated in the beating with Juan R. were known to be part of a gang, though Juan R. denied gang affiliation himself. His mother reported substance abuse and violence in the family home. Juan R. reported that he was regularly drinking alcohol and using marijuana to counter his anger. Juan’s father had been deported approximately a year prior, and Juan’s mother reported being illiterate and feeling overwhelmed by Juan’s behavior.

At the jurisdictional hearing, Juan R. admitted committing second degree robbery. The juvenile court ruled him a ward of the court and placed him on indefinite supervised probation with several probation conditions. Juan R. was prohibited, inter alia, from possessing or consuming alcohol and illegal drugs, from associating with gang members, and from contacting his fellow participants in the robbery and beating. Another probation condition required Juan to “[s]ubmit to search of electronic devices at any time of the day or night by any law enforcement officer, probation officer, or mandatory supervision officer with or without a warrant, probable cause or reasonable suspicion including cell phones over which the minor has control over or access to for electronic communication content information likely to reveal evidence that the minor is continuing his criminal activities and is continuing his association via text or social media with co-companions. This search should be confined to areas of the electronic devices including social media accounts, applications, websites where such evidence of criminality [or] probation violation may be found. [¶] … The minor must provide access/passwords to these electronic devices, accounts, applications, websites to any law enforcement officer, probation officer or mandatory supervision officer.” Juan appealed, contending that the electronic search condition was unreasonable and unconstitutionally overbroad.

Held: The California First District Court of Appeal held that the electronic search condition on the minor was valid because it would deter him from planning future crimes with the others involved in the beating and robbery. The condition would also support the enforcement of the probation term’s prohibitions of his alcohol/drug use and his association with coparticipants or gang members. Nor was the condition overbroad, because the electronic search condition was limited to specific types of information.

The Court stated that under California’s Welfare & Institutions Code section 730(b), a juvenile court can “impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” The Court noted that the juvenile court has broad discretion to make probation conditions, even those that “would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile.”[2] The Court added that the juvenile court “must consider not only the circumstance of the crime, but also the minor’s entire social history.”[3]

The Court explained that under People v. Lent,[4] a probation condition is not invalid unless it requires or forbids conduct which is not reasonably related to future criminality.[5] Juan contended that the electronic search condition was not reasonably related to future criminality because there was no “particularized risk” he would use electronic devices as part of future criminal behavior. The Court rejected this contention because under People v. Olguin,[6] “probation conditions reasonably related to enhancing effective supervision are valid under Lent,” and no Supreme Court precedent required a tie between a “probationer’s past criminal conduct and the locations that may be searched to uphold a search condition under Lent.”

Applying these standards here, the Court found the electronic search condition reasonably related to the effective supervision of Juan’s compliance with other probation conditions, specifically from deterring him from planning future crimes with his fellow participants in the robbery. Because other conditions of Juan’s probation prohibited alcohol and drug use, and prohibited association with coparticipants or gang members, the electronic search condition would also serve to enforce the other prohibitions. Considering Juan’s troubled history and social circumstances, the Court found that the juvenile court could reasonably believe the electronic search condition would deter future criminal conduct. The electronic search condition was valid under Lent and reasonable.

The Court did not find the electronic search condition to be overbroad. The Court observed that in exercising this condition, a probation officer could only infringe Juan’s privacy interests to the extent the electronic communication content searched was reasonably likely to reveal evidence of continued contact with coparticipants or gang members, drug or alcohol use, or other criminal activity and noncompliance with probation conditions. Banking, medical record, and other information was not subject to probationary search.

The Court accordingly found the electronic search condition reasonable and not overbroad.

  1. Officers’ search and seizure of items from a defendant’s car cannot be justified under the inventory-search doctrine where officer and attorney declarations show items were seized as criminal evidence.

United States v. Johnson, 2018 U.S. App. LEXIS 12464 (9th Cir. May 14, 2018)

Facts: In April 2014, police officers from Multnomah County and Portland Police Bureau sought defendant Mark Johnson, who had an outstanding warrant for his arrest. Officers had followed Johnson driving from an inn to a residence and followed him thereafter, finally stopping him at an intersection by loosely boxing in his car from both front and back. Although there was enough room for Johnson to pull his car to the side of the road, he instead parked in the lane of traffic. Officers arrested Johnson on the warrant. Officers searched him incident to the arrest, finding over $7,000. Johnson had borrowed the car, but did not sufficiently identify the owner or how the owner could be reached. Because he did not give the car owner’s contact information and because the car was disrupting traffic, the car was impounded. Before the car was towed, however, officers conducted an inventory search of the car. They found a heavy backpack and cell phones, among other items. After obtaining a search warrant for the backpack, cell phones and another bag, officers found drugs and related paraphernalia and cell phone texts regarding drug trafficking. In the arrest report and an affidavit, an arresting officer stated that he believed the bags and cell phones contained evidence of drug crimes, and were seized “pending further investigation.”

Johnson was charged with possession with intent to distribute methamphetamine in an amount of 50 grams or more. Before the trial, Johnson moved to suppress the evidence, arguing lack of probable cause. The trial court denied his motion, a jury found him guilty, and he was sentenced to 188 months in prison. On appeal, Johnson argued that the officers’ inspection of his car exceeded the constitutionally permissible bounds for an inventory search.

Held: The Ninth Circuit Court of Appeals held that the officers’ search and seizure of the evidence could not be justified under inventory-search doctrine. The Court initially explained that the inventory search exception to the warrant requirement Fourth Amendment permits officers to impound and search a vehicle if they are doing it in “furtherance of community caretaking purpose, such as promoting public safety or the efficient flow of traffic.”[7] The goal of the search is to make an inventory of the items in the car, in order “to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.”[8] The Court stated that the purpose of the search must not be to investigate a crime; it must be “conducted on the basis of something other than suspicion of evidence of criminal activity.”[9] Citing United States v. Orozco,[10] the Court noted that that vehicular inventory searches were a type of administrative search, and that an administrative search may be invalid where the officer’s subjective purpose was to find evidence of crime. The Court added that an “inventory search conducted ‘for an investigatory police motive’ is invalid.”[11]

While the Court determined that Johnson failed to prove that the officers’ stop and inventory search of his vehicle was pretextual, officer statements pointing to the items seized as evidence pertaining to drug crime investigation and the government attorneys’ declarations during the trial and on appeal “made clear throughout this case that the items taken from Johnson’s car were seized and treated specifically as evidence of a crime—not as property held for safekeeping.”

Because the officers explicitly admitted that they seized the items in an effort to search for evidence of crimes, and because the government’s basis for the seizure relied solely on the inventory-search doctrine, the Court concluded that the evidence seized was inadmissible. Accordingly, the Court reversed, vacated Johnson’s conviction and sentence, and remanded.

  1. A defendant seeking to suppress evidence under Pen. Code section 1538.5, although not required to state the basis for his or her challenge to a warrantless search or seizure, must identify the government conduct being questioned.

Davis v. Appellate Division of the Superior Court of Los Angeles County, 23 Cal. App. 5th 387 (2nd Dist. 2018)

Facts: Police stopped plaintiff Davis after he ran a stop sign and drove erratically. Police suspected he was driving under the influence of alcohol. After conducting a field sobriety test, officers searched Davis’ car. They found a cold, open, mostly empty can of beer. Davis was arrested and charged with misdemeanor DUI pursuant to Veh. Code, section 23152, subdivisions (a) and (b) and having an open container of alcohol in his car. Davis moved to suppress, but did not identify which of the several warrantless searches and seizures were unlawful. The trial court denied the motion without a hearing for vagueness under Pen. Code section 1538.5. Davis petitioned for a writ of mandate in the appellate division of the superior court, but the appellate division denied the petition for lack of sufficient detail. Davis petitioned the California Second District Court of Appeal for a writ of mandate to have the appellate division order a trial court hearing on the merits of his motion. When the appellate division declined to vacate its order, Davis filed a reply, and the Second District heard oral argument.

Held: The Second District held that a defendant seeking to suppress evidence under Section 1538.5, although not required to state the basis for his or her challenge to a warrantless search or seizure, must identify the government conduct being questioned. In reaching its conclusion, the Court explained that the Fourth Amendment prohibits unreasonable searches and seizures, and defendants may move to suppress evidence if searches or seizures are not reasonable. Pen. Code section 1538.5, subdivision (a)(2) requires such a motion to “set forth the factual basis and the legal authorities that demonstrate why the motion should be granted.” The Court noted that the California Supreme Court held in People v. Williams[12] that a defendant must state the grounds for the motion with sufficient particularity to give notice to the prosecution of the sort of evidence it will need to present in response,” though the Second District also added that “a defendant is not required to anticipate the prosecution’s justifications.”

Here, Davis’s motion failed to identify which of several searches and seizures he was challenging as unlawful. He thus failed to provide to the prosecution the adequate notice of the kind of evidence it would need in response. Accordingly, the Court denied Davis’ petition for writ of mandate.

  1. Consent to potential DUI blood test makes such evidence admissible, though police officer advised arrestee that his only choice was to submit to blood test when breath test also an option.

People v. Vannesse, 23 Cal. App. 5th 440 (2nd Dist. 2018)

Facts: Ventura Police Department officers responded to a report of a collision. After observing the behavior of the car’s driver, Alexander Vannesse, officers came to believe Vannesse had been driving under the influence of drugs or alcohol. An officer read Vannesse a department advisement[13] for a blood test, without informing Vannesse that he could choose a test of either his blood or breath. The officer also did not tell Vannesse that he could refuse to provide any sample. Vannesse verbally agreed to give a blood sample, and signed a consent form that gave him the option of refusing consent. Vannesse was charged with misdemeanor driving under the influence of a drug. At a Penal Code section 1538.5 hearing considering his motion to suppress the blood test results, Vannesse argued that he did not freely consent to the blood test because he was not given the option of a breath test as stated in California Vehicle Code section 23612(a)(2)(B). Vannesse claimed that a Supreme Court case involving nonconsensual blood testing in the absence of a warrant controlled,[14] but the People argued that Vannesse consented to the blood test. The trial court denied the motion. Vannesse appealed.

Held: The California Second District Court of Appeal held that Vannesse freely and voluntarily consented to the blood draw. The Court explained that there is no Fourth Amendment violation when a motorist freely and voluntarily consents to a warrantless chemical test of his blood.[15] In so doing, the Court acknowledged that Veh. Code, section 23612, subd. (a)(2)(B) provides: “If the person is lawfully arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person has the choice of whether the test shall be of his or her blood or breath, and the officer shall advise the person that he or she has that choice.” But the Court noted that a breath test only tests for alcohol, and “[i]f the officer had given the statutorily required advisement and appellant had chosen a breath test, the officer could and would have required him to submit to a blood test pursuant to section 23612, subdivision (a)(2)(C),” which stated: “A person who chooses to submit to a breath test may also be requested to submit to a blood test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has a clear indication that a blood test will reveal evidence of the person being under the influence … . The officer shall advise the person that he or she is required to submit to an additional test. The person shall submit to and complete a blood test.” The Court concluded that the “failure to advise the arrestee of his statutory right to choose between a breath and blood test does not run afoul of any constitutional restraint.”

Vannesse verbally agreed to the blood test and signed a consent form that gave him the option of refusing consent. Thus, he “freely and voluntarily” consented to the blood test. Accordingly, the Court affirmed the trial court’s order to suppress Vannesse’s motion.

  1. Warrantless blood draw, not under exigent circumstances, where sufficient time and officer assistance was available, but not utilized, to obtain a warrant, violated the Fourth Amendment prohibition against unreasonable searches and seizures.

People v. Meza, 23 Cal. App. 5th 604 (1st Dist. 2018)

Facts: In September 2013, Matthew Meza was driving over 90 miles per hour in car with his girlfriend as a passenger when he lost control, launching the car over the median past oncoming traffic and falling down into an embankment. Meza and his passenger were assisted to safety by a Concord Police Department officer. At least three other Concord police officers, including Danielle Cruz, arrived in the aftermath. After an officer suggested to Cruz that Meza smelled slightly of alcohol, Cruz pursued an intoxication investigation. Cruz concluded that Meza should be arrested for driving under the influence (“DUI”). Meza was taken to a hospital where Meza’s blood was drawn as part of trauma patient care. Two hours had passed since the accident when Cruz also had Meza’s blood drawn for forensic purposes, to which Meza consented. His blood alcohol count (“BAC”) was 0.11 percent, over the legal limit of 0.08. Cruz had not tried to obtain a warrant, nor prior to this point directed other officers to do so. Meza was charged with felony DUI. He moved to suppress the BAC results.  The trial court denied his motion, finding that exigent circumstances regarding Meza and his passenger’s medical needs justified the warrantless blood draw on Cruz’s directive. With two prior DUI convictions, Meza was ultimately convicted of DUI causing injury and sentenced to six years in prison. Meza appealed.

Held: The California First District Court of Appeal held that under the Fourth Amendment, exigent circumstances did not excuse police from getting a warrant at any point in the two hours after the accident before having the defendant’s blood drawn at the hospital. The Court explained that the Fourth Amendment mandates that a warrantless search (a blood draw is considered a “search” for Fourth Amendment purposes) is per se unreasonable unless it is proved that a recognized exception – like the exigency exception[16] – applies to the search. Looking at case precedent, the Court observed that the United States Supreme Court held in Schmerber v. California[17] that a warrantless blood draw after a DUI accident was permissible because the officer “‘might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence[.]” [Citation.] … Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.’” Much more recently, the Supreme Court established the standard in Missouri v. McNeely,[18] holding that “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

Here, the Court noted that Officer Cruz did not even attempt to get a warrant, though there was sufficient time to do so herself, or to engage other officers to help with any activities that could not be put off. Moreover, Cruz had been trained in procedures to efficiently and quickly obtain warrants approved by the on-call judge, and she had time in the two hours since Meza’s accident to do so. Because the exigency exception did not apply, the Court concluded that the warrantless blood draw violated the Fourth Amendment and the BAC results should be suppressed. Nevertheless, the Court found that the error was harmless because the hospital’s own blood draw results showed a BAC of 50% over the 0.08 legal limit. This was so high that the Court concluded Meza’s BAC must have been at least 0.08 at the time of the accident, even if the forensic blood test results ordered by Officer Cruz had been suppressed. The First District therefore affirmed.

  1. Arresting officer’s failure to warn drunk driver of consequences for refusing chemical test did not render driver’s consent to such test coercive or involuntary.

People v. Balov, 2018 Cal. App. LEXIS 469 (4th Dist. May 23, 2018)

Facts: San Diego Police Officer Luis Martinez pulled over Peter Balov’s vehicle around 3a.m. one morning in March 2015 after observing Balov drive erratically. Balov admitted he had been drinking and agreed to submit to field sobriety exercises and a preliminary breath sample, which showed his blood-alcohol level was over the legal limit. Martinez arrested Balov for misdemeanor driving under the influence (“DUI”) of alcohol. Martinez told Balov he was required to take a chemical test, of either his breath or blood. Balov did not object, choosing the blood test. His blood alcohol was over the legal limit. Before trial, Balov moved to suppress the warrantless blood test results, arguing he was coerced, among other things, because Officer Martinez did not explain the consequences of refusing chemical testing under Veh. Code section 23612. The trial court denied the motion and the appellate division affirmed. Balov appealed, contending his consent was not voluntary, thereby violating the Fourth Amendment.

Held: The Fourth District Court of Appeal held that the totality of the circumstances showed that the defendant freely consented to his blood test, despite the officer statement that was incomplete under Veh. Code section 23612. The Court began its discussion by noting that the Fourth Amendment prohibits those searches that are deemed unreasonable.[19] The Court explained that a blood draw is considered a “search” for Fourth Amendment analysis purposes,[20] and consensual blood draws without a warrant do not violate the Fourth Amendment. The Court went on to say that under the “implied consent” law in Section 23612, a driver of a motor vehicle in California is considered to have implicitly given consent to chemical testing in a lawful arrest for a Vehicle Code violation. The driver has the option to replace the implicit consent with explicit rejection of that consent when put to the choice by the officer, or to actualize the consent by agreeing to the chemical test. Finally, the Court of Appeal cited United States v. Drayton[21] in observing that no “‘presumption of invalidity attaches if a citizen consent[s to a search] without explicit notification that he or she was free to refuse to cooperate. Instead, the [United States Supreme] Court has repeated that the totality of the circumstances must control, without giving extra weight to the absence of this type of warning.’”

Here, the Fourth District noted that Balov was a driver on a public road subject to implied consent when he was lawfully arrested for DUI. Balov freely consented to the search of his blood. Martinez correctly told Balov he was required to submit to a breath or a blood test. While Martinez’s statement was incomplete under Section 23612, there was no evidence that Martinez intentionally deceived Balov by omitting the consequences of refusing chemical testing in his statement. Finally, Balov never objected to the test before or after he consented. The Court found that Martinez’s incomplete statement did not inhibit Balov from voluntarily consenting to the test. Therefore, the Court concluded that, in view of the totality of the circumstances here, it could not determine that the trial court’s finding that Balov voluntarily consented to the blood test was wrong. Thus the Fourth District affirmed.

  1. Automobile exception to Fourth Amendment warrant requirement does not permit search of vehicle located in curtilage of home.

Collins v. Virginia, 2018 U.S. LEXIS 3210 (U.S.S.C. May 29, 2018)

Facts: In June of 2013, an orange and black motorcycle driving at high speeds repeatedly evaded Albemarle County Police Department of Virginia officers. Upon investigation, Officer David Rhodes learned that the motorcycle was most likely stolen and in the possession of petitioner Ryan Collins. From social media, Rhodes saw a photo of a similar motorcycle parked in the driveway. Rhodes obtained Collins’ address and arrived there later, parking on the street. From that position, the officer was able to see what appeared to be the motorcycle under a white tarp. The motorcycle was parked at the same location in the driveway as Officer Rhodes had observed on Collins’ social media page.

Officer Rhodes approached the house and took a photograph of the motorcycle from the sidewalk. He subsequently walked onto the property and removed the tarp. After doing so, he noticed that it appeared to be the same motorcycle that he and Officer McCall previously had seen speeding. After running a search of the license plate and vehicle information, he determined that the motorcycle was stolen.

Officer Rhodes took photographs of the uncovered motorcycle before putting the tarp back on and retreating to his vehicle to wait for Collins. When Collins arrived, he agreed to speak to Officer Rhodes and confessed that the motorcycle was his and that he had bought it without title. Officer Rhodes then arrested Collins.

Collins was indicted by a Virginia grand jury for receiving stolen property. At trial, the court denied Collins’ motion to suppress and he was convicted of the charge of receiving stolen property. The Virginia Court of Appeals and the Supreme Court of Virginia affirmed. The United States Supreme Court granted review of the case to address the question raised in the lower courts of whether the automobile exception to the Fourth Amendment permitted a police officer, without a warrant, to enter the curtilage of a home to search a vehicle parked therein.

Held: The Supreme Court of the United States held that, the automobile exception does not permit the warrantless entry into the curtilage of a home to search a vehicle located therein.

The Court first analyzed the automobile exception to the Fourth Amendment’s warrant requirement. The Court stated, “This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not.” The Court noted that a principal justification of the automobile exception was the “ready mobility” of vehicles. California v. Carney, 471 U.S. 386, 390, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985). For this reason, the Court stated that it previously had held that automobiles were subject to long-standing governmental controls and regulations, unlike homes. Police officers can stop vehicles when the vehicle is used to violate the law, or when other problems with the vehicle arise. Id., at 368, 96 S. Ct. 3092, 49 L. Ed. 2d 1000. When such justifications are present, officers may search the vehicle without a warrant, provided they have probable cause for doing so. Id., at 392-393, 105 S. Ct. 2066, 85 L. Ed. 2d 406.

However, the Court noted that this exception allowing search without a warrant does not apply to homes, except in limited circumstances. The Court stated that it previously had held that persons have a right in their homes to be free from arbitrary government harassment and intrusion. The Court further observed that the “curtilage” – the area immediately associated with the home and to which the activity of home life extends – has been given constitutional protections under the Fourth Amendment as well. Protection of curtilage is “protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U.S. 207, 212-213, 106 S. Ct. 1809, 90 L. ed. 2d 210 (1986). The Court stated that, if a police officer intrudes on the curtilage of a home to obtain evidence or information, a search of the home has occurred under the meaning of the Fourth Amendment. Florida v. Jardines, 569 U.S., at 11, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013).

In the case at hand, the Supreme Court found the driveway where Officer Rhodes searched the motorcycle was part of the curtilage of the home and thereby protected against unreasonable searches under the Fourth Amendment. The Court noted that the area where the motorcycle was parked at the time of the search sat “behind the front perimeter of the house that is enclosed on two sides by a brick wall about the height of a car and on a third side by the house.” Officer Rhodes physically intruded on the curtilage to obtain evidence and information, without a warrant. His intrusion not only invaded Collins’ Fourth Amendment interest in the motorcycle searched, but also invaded his privacy interest in the curtilage of the home.

The Court stated that the automobile exception did not justify the invasion of curtilage as “the scope of the automobile exception extends no further than the automobile itself”. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. ed. 2d 1031 (1996). In response to Virginia’s request to expand the scope of the exception, the Court concluded that nothing from case law suggested that the automobile exception allowed officers to enter the home or curtilage without a warrant to access a vehicle. The Court concluded that expanding the exception would “undervalue the core” of protections under the Fourth Amendment and alter the exception to be “a tool with far broader application.”

The Court reasoned that an officer cannot search a vehicle parked within a home or curtilage as part of the automobile exception because it is an intrusion on the person’s Fourth Amendment interest in the home and curtilage. Accordingly, the Supreme Court of the United States reversed the judgment of the Supreme Court of Virginia and remanded the case for further proceedings not inconsistent with this opinion.


In a short dissent, Justice Alito reiterated that the principal justification for the automobile exception was based on the risk that the vehicle could easily be moved before a warrant could be obtained. For that reason, vehicle owners have a reduced expectation of privacy in their cars as compared to their homes. The dissent stated that the protection of homes under the Fourth Amendment does not include all real property surrounding the dwelling. Therefore, the issue to analyze should have been whether the search was reasonable. Justice Alito stated that this inquiry depended on the level of intrusion on privacy. Believing there was no privacy interests of the home impacted by Officer Rhodes’ actions, Justice Alito concluded that a case-specific analysis on the level of intrusion on privacy was proper when the vehicle to be searched was on private property. Because the Fourth Amendment prohibits unreasonable searches, the judgment of the lower court should be maintained, stated Justice Alito.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 14, available at www.jones-mayer.com.

  1. Where prisoners hold subjectively and objectively reasonable fear of likely retaliation in response to complaints over beatings delivered by correctional officers, failure to seek administrative remedies does not preclude Section 1983 relief.

Rodriguez v. County of Los Angeles, 2018 U.S. App. LEXIS 14186 (9th Cir. May 30, 2018)

Facts: In August 2008, Los Angeles Sheriff Department deputies responded to a disturbance in the Los Angeles County Men’s Central Jail. As they conducted “cell extractions,” they severely beat several inmates causing severe injuries. Five inmates (“appellees”), brought suit against the County of Los Angeles and individual defendants, appellants here (“appellants”), under 42 U.S.C. section 1983 alleging constitutional violations. Prior to trial, appellants moved for summary judgment on qualified immunity grounds. The district court denied the motion. At trial, the inmates detailed the officer actions and the nature and severity of the individual beatings from the officers. The jury found for the inmates, awarding damages. Appellants moved for, among other things, judgment as a matter of law and for a new trial. Appellants appealed after the district court denied the motions.

Held: The Ninth Circuit Court of Appeals rejected a number of contentions from appellants.

Appellants contended that appellees had failed to exhaust their available administrative remedies at the jail prior to filing suit pursuant to the Prison Litigation Reform Act (“PLRA”). The district court had found that administrative remedies were effectively unavailable because the appellees provided factual statements supporting an actual and objectively reasonable fear of retaliation[22] for filing grievances, and because appellants failed to carry their burden showing that administrative remedies were available. The Ninth Circuit determined that the district court did not clearly err in these findings because it was “clear that the district court considered evidence submitted by the parties in reaching its decision” on the exhaustion issue.

The Court of Appeals also rejected appellants’ qualified immunity arguments. The Court found substantial evidence presented to the jury that officers inflicted severe injuries while appellees were not resisting, negating one appellant argument that there was insufficient evidence to support the constitutional violation found by the jury. The Court also found that no reasonable officer in such circumstances would have believed that beating an inmate so severely that serious injury, hospitalization and unconsciousness occurred was constitutionally valid; thus, avoidance of such actions was clearly established. Nor were supervisors individually entitled to qualified immunity because abundant evidence showed that they stood by observing the extractions and knowingly refused to stop the deputies’ unconstitutional actions. Nor did supervisors benefit from state law immunity because the officers’ use of excessive force nullified such protection.

The Ninth Circuit also found that the jury verdict and the district court’s ruling of municipal liability under Monell v. Dep’t of Soc. Servs. of City of New York[23] was strongly supported by the evidence. The Ninth Circuit noted that there was substantial evidence of repeated constitutional violations, the Los Angeles County Sheriff’s Department’s knowledge of those violations, and of its failure to take any remedial actions. The Court found that legal precedent allowed the jury to deduce that the Sheriff’s Department had adopted a custom or practice of condoning excessive force and that this culture of violence and impunity proximately caused the injuries inflicted on appellees.

For these reasons, the Ninth Circuit accordingly affirmed.

  1. Genuine issue of fact exists as to officer’s allegedly improperly arranged ‘show-up,’ and allegedly fabricated statement where released inmate brings Section 1983 claim.

Caldwell v. City and County of San Francisco, 2018 U.S. App. LEXIS 12335 (9th Cir. May 11, 2018)

Facts: In June 1990, a person was shot and killed during a drug transaction. In July, San Francisco Police Department Sergeant Kitt Crenshaw went with other officers to canvass the housing project where the murder happened, in order to find witnesses to the murder. The day before, an anonymous tip named Maurice Caldwell as someone who the police should “check out” as someone who had shot guns in the projects for years. Sergeant Crenshaw had several prior encounters with Caldwell. Caldwell said that during these stops Crenshaw would threaten to catch him, or kill him, or have Caldwell put in jail for the rest of his life. Five months before the murder, Caldwell filed a claim against Crenshaw with the Office of Citizen Complaints (“OCC”). During the corresponding OCC investigation, Crenshaw admitted telling Caldwell: “One day…you’re going to be blown away. Something’s going to happen to you….I’m going to kill you…” During the canvassing, Sergeant Crenshaw saw Caldwell. According to Caldwell and his then-girlfriend, Crenshaw next brought Caldwell to the door of a residence where another officer was interviewing a resident for a “show-up.” The resident would later become a witness in the murder investigation. With Caldwell in view of the future witness, Crenshaw identified Maurice Caldwell by name and nickname while talking with the officer. Crenshaw later wrote in a report that Caldwell made a “spontaneous statement” that Caldwell was with the suspects dealing drugs before the shooting, and was present down the street at the time of the shooting. Caldwell denied making any such statements, and alleged that Crenshaw lied in the report. Instead, Caldwell said that he questioned why Crenshaw had been harassing him and told Crenshaw that he had been at his uncle’s house the night of the murder.

The resident of the house where Crenshaw showed and identified Caldwell in her presence later met with Crenshaw and the other officer who interviewed the resident for a photo lineup and subsequent interview. Her initial description of the suspect was somewhat inconsistent with Caldwell’s physical attributes, but she identified Caldwell as the shooter (using the nickname Crenshaw mentioned at the show-up). During this process, the officers repeatedly interjected with guiding statements indicating Caldwell as the shooter. Later she became a witness for the prosecution. At trial, the witness testified that Caldwell was the shooter. A jury convicted Caldwell of second-degree murder. The witness and her children received gifts from a city witness program a few months later. Caldwell served twenty years in prison for the murder.

After his release, he sued Crenshaw and other SFPD officers under 42 U.S.C. section 1983 for fabricating evidence against him in the murder investigation. Caldwell alleged that Crenshaw deliberately manufactured the show-up exposing Caldwell to the eventual witness. Caldwell alleged that the goal of the show-up was to manipulate the witness into wrongly identifying Caldwell as the murder suspect. In support of the defendants’ motions for summary judgment, the Assistant District Attorney who prosecuted Caldwell twenty years prior declared that he had conducted his own investigation. He declared that he had at the time interviewed several witnesses, reviewed all the evidence available and then authorized the charges against Caldwell.

Though the district court held that Caldwell had raised a triable issue as to whether Crenshaw fabricated evidence, Crenshaw was protected from liability because the prosecuting attorney’s decision to charge Caldwell was presumed independent of Crenshaw’s potential wrongdoing. The district court consequently granted Crenshaw’s motion for summary judgment. Caldwell appealed.

Held: The Ninth Circuit Court of Appeals held that because Caldwell rebutted any presumption of prosecutorial independence, he established a triable issue as to whether Crenshaw fabricated evidence against him. The Court observed that there is a “clearly established constitutional due process right not to be subject to criminal charges on the basis of false evidence that was deliberately fabricated by the government.”[24]

Here, Caldwell presented direct evidence that established that Sergeant Crenshaw had a motive to retaliate against him, including the several encounters prior to the murder, and the OCC complaint and subsequent investigation of Crenshaw. The Court held that Caldwell raised a triable issue as to whether Crenshaw arranged the show up, deliberately fabricated the statement and memorialized it in falsified notes. The witness initially said, for example, that she did not know the names or nicknames of the shooters and that they did not live in the neighborhood. The fact that she only later after the show-up identified Caldwell and his nickname supported the inference that the show-up influenced her initial recollection. Caldwell had established that Crenshaw had a motive to retaliate against him for the OCC investigation and Crenshaw sought murder witnesses in canvassing the murder vicinity, among other factors. Together, these represented a genuine issue about whether Crenshaw arranged the show-up.

The Court also noted the “wide gulf” between Crenshaw’s report that Caldwell admitted being present at the shooting and involved with the drug-dealing suspects and Caldwell’s statement that he was at his uncle’s house when the shooting happened. This gulf supported the inference that there was a triable dispute about whether Crenshaw intentionally fabricated his notes.

Finally, because Caldwell had raised a triable issue as to whether the prosecuting attorney relied on the alleged falsehoods by Crenshaw – i.e., both in his notes and in his handling of the show-up for the purpose of influencing the witness to identify Caldwell – the Court held that Caldwell had “rebutted any presumption of prosecutorial independent judgment and… established a triable issue as to causation.”

The Court accordingly reversed and remanded as to the grant of summary judgment to Sergeant Crenshaw.

  1. County is liable for its sheriff’s racially discriminatory policies where Title VI of the Civil Rights Act of 1964 and 34 U.S.C. section 12601 authorize policy maker liability.

United States v. County of Maricopa, 2018 U.S. App. LEXIS 11865 (9th Cir. May 7, 2018)

Facts: As the former Sheriff of Maricopa County, Arizona, Joseph Arpaio led the Maricopa County Sheriff’s Office to routinely target Latino drivers and passengers for the purpose of detecting federal immigration law violations under the pretense of traffic violations. The United States sued Arpaio and the County of Maricopa under Title VI of the Civil Rights Act of 1964,[25] and 34 U.S.C. section 12601. The district court granted the United States’ motion for summary judgment on the claims relating to the unlawful traffic stops. Maricopa County appealed, contending that it cannot be held liable for Arpaio’s unlawful traffic-stop policies.

Held: The Ninth Circuit Court of Appeals rejected the County’s arguments and affirmed. The Court explained that it had already determined in Melendres v. Maricopa County[26] that Arizona state law made clear that Arpaio’s law-enforcement acts as Sheriff constituted Maricopa County policy since he had final policymaking authority. The Court explained that Arpaio’s traffic-stop policies fell within the scope of a sheriff’s law-enforcement duties, and he acted as the County’s final policymaker when he implemented the policies.

The Court also explained that under Title VI, the County can be held liable if “an official with power to take corrective measures is ‘deliberately indifferent to known acts’ of discrimination.” The Court determined that Section 12601 “at least imposes liability on a governmental authority whose own official policy causes it to engage in ‘a pattern or practice of conduct by law enforcement officers’ that deprives persons of federally protected rights.” The Court found that both statutes authorize policymaker liability for an entity like Maricopa County here. Because Arpaio acted as Maricopa County’s final policymaker when he adopted the racially discriminatory traffic-stop policies, such policies were the county’s own policies. The Ninth Circuit thus affirmed.


Not error for district court to sua sponte raise qualified immunity issue and request briefing on it, though defendant had indicated he would not seek such a motion.

Easley v. City of Riverside, 2018 U.S. App. LEXIS 12925 (9th Cir. May 18, 2018)

Facts: In December 2011, Riverside Police Officer Silvio Macias and his partner pulled over a car with possibly illegally-tinted windows. After the car stopped, plaintiff Easley jumped out of the car, and ran away while clutching with one hand at his pants waistband. Exiting their car, Macias’ partner yelled out “Gun” or “He’s got a gun,” while Macias pursued Easley on foot. Easley, still clutching his waistband with one hand, flung an item away with his other hand that was later found to be a gun. Macias fired three times, hitting Easley. Easley became paralyzed and permanently disabled from his resulting injuries. Easley sued claiming excessive use of force under 42 U.S.C. section 1983. Although the parties negotiated a partial dismissal of some claims and Macias agreed not to seek summary judgment on the remaining ones, the district court conducted a pretrial status conference and sua sponte raised the issue of Macias’ entitlement to qualified immunity. After an evidentiary hearing, the district court granted summary judgment to Macias and judgment as a matter of law. Easley appealed, contending that sua sponte grant was not permitted and that genuine issues of fact remained regarding Macias’ entitlement to qualified immunity.

Held: The Ninth Circuit held that the district court properly considered qualified immunity sua sponte and then granted qualified immunity to Macias on the merits because, viewing the record in the light most favorable to Easley, Macias’ use of deadly force was objectively reasonable under the Fourth Amendment. The Court explained that “a district court is not proscribed from directing the parties to brief the [qualified immunity] issue when it has been properly raised” and that “‘[d]istrict courts unquestionably possess the power to enter summary judgment sua sponte even on the eve of trial.’”[27] Here, Macias properly raised qualified immunity as a defense, and had never waived or abandoned his qualified immunity defense. The Court of Appeals thus held that the district court did not improperly sua sponte raise the qualified immunity issue and addressing it on summary judgment.

Considering the merits, the Ninth Circuit explained that officers are entitled to qualified immunity under Section 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was “clearly established” at the time.[28] Here, the Court determined that when viewing the facts and allegations in the light most favorable to Easley, Macias’ use of deadly force was objectively reasonable. The Court observed that Macias’ partner had yelled about a gun as Easley fled the car; that Easley had been clutching at his waistband; that Easley had pulled an object from the pants pocket; Easley seemed like he was turning with the object towards Macias; and events were moving quickly requiring Macias to exert split-second judgment. The Court thus concluded that a reasonable officer might reasonably have expected that Easley had a firearm and was turning to shoot. Thus, the Court concluded Macias was entitled to qualified immunity. Because of this finding, and because the district court’s raising sua sponte of the issue was not improper, the Ninth Circuit accordingly affirmed.


Because wiretap orders were not lacking any information that the statute required them to include and would have been sufficient absent the challenged language authorizing interception outside the court’s territorial jurisdiction, the orders were not facially insufficient.

Dahda v. United States, 200 L. Ed. 2d 842 (2018)

Facts: A Kansas district court judge authorized nine wiretap orders for a government investigation in a drug distribution ring in Kansas. Though federal law under 18 U.S.C. section 2518(3) directs that wiretap orders permit communications interception only “within the territorial jurisdiction of the court in which the judge is sitting,” each of the Kansas judge’s wiretap orders also had an additional sentence allowing the government to intercept communications outside of Kansas. The government obtained most of the intercepted communications from a Kansas listening post, but some interceptions were communications from a Missouri listening post. Based on the investigation, petitioners Los and Roosevelt Dahda were indicted for participating in an illegal drug distribution conspiracy. They moved to suppress evidence, arguing that the language of the additional sentence on each of the wiretaps rendered each wiretap order “insufficient on its face,” under 18 U.S.C.S. section 2518(10)(a)(ii). The Government agreed not to introduce any evidence arising from its Missouri listening post. The District Court denied the Dahdas’ motion. The Tenth Circuit Court of Appeals affirmed, finding that the challenged language did not implicate Congress’ core statutory concerns in enacting the wiretap statute. The Supreme Court of the United States granted certiorari.

Held: Because the wiretap orders were not lacking any information required by the statute and would have been sufficient if the challenged language authorizing interception outside the court’s territorial jurisdiction had not been included, the orders were not facially insufficient. In reaching its conclusion, the high court found that the Tenth Circuit should not have used the core concerns model that was described in United States v. Giordano[29] because, unlike the instant case, Giordano involved unlawfully intercepted communications. Nevertheless, the Court found that the “surplus” sentence pertaining to interceptions outside of Kansas was such a defect in the orders. The sentence was not related to any other relevant part of the orders. Moreover, every wiretap that produced evidence introduced at the Dahdas’ trial was properly authorized under the statute because no evidence that came from communications outside of Kansas was introduced at the Dahdas’ trial. As such, the Court determined that the challenged defect was not substantial enough to render the wiretap orders facially insufficient, and accordingly affirmed the lower court’s decision.


  1. Attachments that are part of a report that must be disclosed under POBRA must also be disclosed where the attachments further the statute’s purpose.

Davis v. County of Fresno, 22 Cal. App. 5th 1122 (5th Dist. 2018)

Facts: James Davis was a supervising juvenile correctional officer. In August 2013, he was dismissed based on a number of misconduct allegations. Davis made an administrative appeal, which the Civil Service Commission of the County of Fresno denied. He next filed a petition requesting the superior court to set aside the Commission’s decision.  However, the Superior Court denied the petition. Davis appealed, arguing that the County violated his rights under the Public Safety Officers Procedural Bill of Rights Act (“POBRA”)[30] to receive complete copies of reports and interviews that occurred as part of the internal affairs investigation into his alleged misconduct. He specified that the County withheld attachments that included investigators’ reports, incident reports, and transcripts of witness interviews that the County should have produced.

Held: The County of Fresno violated Davis’s POBRA right under Gov. Code section 3303(g) to receive “any reports or complaints made by investigators or other persons.” The Fifth Circuit Court of Appeal found that the term “any reports” included the interview transcripts and incident reports attached to a memorandum prepared as part of the internal affairs investigation into Davis’s misconduct. The Court explained that having a broad interpretation fostered POBRA’s goals of “promoting stability, integrity and public confidence in law enforcement.” The Court also found that providing such attachments to investigation reports helped ensure the integrity of the report, because the officer could thereby check source documents to gauge whether the investigatory report was accurate. The Court thus concluded that the attachments were part of the documentation that the County was required to provide to Davis pursuant to Section 3303(g). The Court reversed and remanded.

  1. To prevail on Public Safety Officers Procedural Bill of Rights claim, officers denied representation in OIG interview over use of force practices in prison must have been under existing or potential investigation.

Blue v. Office of Inspector General, 23 Cal. App. 5th 138 (3rd Dist. 2018)

Facts: In June 2015, the Office of Inspector General (“OIG”) was authorized by the Senate Rules Committee to review the practices at High Desert State Prison pertaining to allegations concerning of use of excessive force, internal reviews of the cases, and inmate protection. As part of the review, OIG interviewed several correctional officers. Some of those officers requested representation at the interviews but were denied because they were told they were not under investigation and their statements would not be used as part of an investigation. Five officers sued, alleging, inter alia, Public Safety Officers Procedural Bill of Rights (“POBRA”) violations arising from OIG’s denial of their request to representation during the interviews. The OIG moved to strike pursuant to Code of Civil Procedure section 425.16, otherwise known as the anti-SLAPP statute, arguing that the officers challenged protected activity, and that they could not demonstrate a probability of prevailing on the merits. The trial court denied the motion. OIG appealed.

Held: The California Third District Court of Appeal held that the defendants sufficiently demonstrated that plaintiff’s causes of action essentially arose from protected activity, but the plaintiffs did not establish a probability of succeeding on the merits of their claims.

The Court explained that the two conditions required to grant the anti-SLAPP statute’s special motion to strike are: (1) Defendant makes a threshold showing that the challenged cause of action is one arising from protected activity. (2) Plaintiff fails to demonstrate a probability of prevailing on the claim on the merits. The Court explained that “authorized official proceedings necessarily involve a public issue or an issue of public interest,”[31] which is protected activity according to “case law holding that anti-SLAPP protection extended to statements of governmental actors on matters of public interest and concern.” OIG’s excessive force review of the prison was found “a topic of widespread public interest” and so qualified for protection under the first condition.

Turning the second condition as it pertained to the POBRA claim, the Court explained that Gov. Code section 3303 “requires the officer invoking the right to representation must be (1) ‘under investigation’ and (2) ‘subjected to interrogation … that could lead to punitive action.’” But the Court observed that none of the individual officer plaintiffs who were interviewed in connection with the OIG’s review of the prison were “under investigation” for any activity, much less something “that could lead to punitive action.” The Court concluded that both anti-SLAPP conditions were met to support the special motion to strike. The Court accordingly reversed the part of the trial court’s order denying the motion, and remanded with directions to enter a new order granting the motion in its entirety and dismissing the complaint.


U.S. Supreme Court rejects Ninth Circuit’s recognition of “class-like claims” in a non-class action lawsuit concerning application of safety restraints in pre-trial proceedings.

United States v. Sanchez-Gomez, 2018 U.S. LEXIS 2804 (U.S. May 14, 2018)

Facts: In the Southern District of California, the District Court judges acceded to a United States Marshal Service’s request to allow a district-wide policy of application of full safety restraints[32] on any in-custody criminal defendant during non-jury, pre-trial criminal proceedings. The four Respondents in this case were shackled in accordance with this policy during their pre-trial proceedings. They challenged the use of full safety restraints in their respective criminal cases and also, more broadly, the policy itself. The District Court denied their challenges.

Respondents appealed to the Ninth Circuit Court of Appeals, but their respective criminal cases ended before the Ninth Circuit could adjudicate the safety restraint issue. Proceeding to address the restraint policy issue nonetheless, the Ninth Circuit regarded the matter as a “functional class action” case, and determined that Supreme Court civil class action precedents saved the case from mootness because the case involved “class-like claims” seeking “class-like relief.” Expressing its supervisory authority over the Southern District, the Ninth Circuit turned to the merits, and ultimately concluded that the use of full safety restraints violated the Due Process Clause of the Fifth Amendment.[33] The United States Supreme Court granted review of the Ninth Circuit’s decision.

Held: The United States Supreme Court held that the challenge to the district-wide policy of using “full restraints” on in-custody criminal defendants was moot because the underlying criminal cases against Respondents had ended.

The Supreme Court first explained that the federal judiciary can only adjudicate “actual and concrete disputes, the resolutions of which have direct consequences on the parties involved.”[34] Such a dispute “must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S. Ct. 2330, 45 L. Ed. 2d 272 (1975). A case that becomes moot at any point during the proceedings is “no longer a ‘Case’ or ‘Controversy’ for purposes of Article III,” and is outside the jurisdiction of the federal courts, the Court noted. Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S. Ct. 721, 184 L. Ed. 2d 553 (2013). The Supreme Court made several determinations.

  1. The Ninth Circuit wrongly relied on class action precedent in concluding that the case was not moot.

The Supreme Court observed that the Ninth Circuit had relied on the high court’s civil class action precedents, particularly Gerstein v. Pugh,[35] in its analysis. The Supreme Court stated that this reliance was misplaced. The Court explained that Gerstein was a class action involving pretrial detention brought under Federal Rules of Civil Procedure, Rule 23. A month prior to the Gerstein decision, the high court had adjudicated Sosna v. Iowa.[36] In Sosna, the Court held that when the claim of the named plaintiff becomes moot after class certification, a “live controversy may continue to exist” based on the ongoing interests of the remaining unnamed class members. The certification of class status bestowed a “legal status separate from the interest asserted by the named plaintiff.”[37]

The Supreme Court explained that Gerstein simply provided a limited exception to Sosna’s requirement that, at the time of class certification, a plaintiff with a live claim must exist. The Court further stated that it had repeatedly confined the Gerstein exception “to the class action setting from which it emerged.” The Court then rejected the Ninth Circuit’s notion “that Gerstein supports a freestanding exception to mootness outside the class action context.” The Court observed that the class action is a creature of the Federal Rules of Civil Procedure, which were not applicable to the criminal context of the Respondents in this case. The Court further noted that the Federal Rules of Criminal Procedure provided “no vehicle comparable to the civil class action,” and that “this Court has never permitted criminal defendants to band together to seek prospective relief in their individual cases on behalf of a class.” As such, the Court concluded that the Ninth Circuit incorrectly utilized Gerstein in determining that this case was not moot.

  1. The Ninth Circuit incorrectly determined that the case remained alive as a controversy that was “capable of repetition, yet evading review”.

Two Respondents, whose criminal cases arose from their illegal entry into the United States, argued that their cases fell within the “exception to the mootness doctrine for a controversy that is capable of repetition, yet evading review.”[38] The Supreme Court explained that a dispute qualifies for this exception only “if (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.”[39] The first element was uncontested.

The Respondents claimed that the second prong also applied to them because these two Respondents would again violate the law, be apprehended, and be returned to pretrial custody to encounter the full safety restraint policy again. In rejecting this argument, the Court explained that it had consistently refused to conclude that the requirement was satisfied by the possibility that a party would be inevitably prosecuted for violating valid criminal laws. The Court stated that it had always assumed that litigants would conduct themselves lawfully and therefore avoid prosecution, conviction, and the chance to be exposed to the challenged course of conduct.

The Court also explained that the cases Respondents cited in support of their argument were inapposite because they concerned litigants unable, for reasons beyond their control, to prevent themselves from transgressing and avoid recurrence of the challenged conduct. Here, the Court noted that Respondents were able to control their own behavior to avoid reentry into the country. Moreover, they were required by law to do so. Thus, the Court found that the second prong of the test was not satisfied and this exception to the mootness doctrine also did not apply.

Accordingly, the Supreme Court vacated the Ninth Circuit’s judgment and remanded the case with instructions to dismiss the case as moot.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 12, available at www.jones-mayer.com.


Mere association with a conspirator and expert testimony did not comprise sufficient evidence to conclude that the defendant entered into a conspiratorial agreement to distribute or import marijuana.

United States v. Espinoza-Valdez, 2018 U.S. App. LEXIS 11864 (9th Cir. May 7, 2018)

Facts: U.S. Border Patrol agents observed Pragedio Espinoza-Valdez sitting under a tree on a mountaintop in the Vaiva Hills area of Arizona some distance away from two other men who were communicating with one another. Espinoza-Valdez was later observed walking behind one of the other men and carrying a backpack. When he saw the agents, Espinoza-Valdez dropped his radio and ran before agents apprehended him. Agents found carpet shoes amongst his items. The agents also located a nearby campsite with sleeping bags, water jugs, and additional food supplies. They did not find any drugs in the area. At the jury trial, a border patrol commander testified that he thought Espinoza-Valdez was a drug trafficking scout and that carpet shoes were used by both drug couriers and undocumented immigrants to hid their footprints. The government also presented evidence that they had previously apprehended Espinoza-Valdez months earlier, whereupon he admitted to backpacking marijuana. However, the agents did not find these backpacks, and released him without charge. Ultimately, Espinoza-Valdez was convicted for conspiracy to import and conspiracy to distribute marijuana. The trial court denied his subsequent motion for acquittal notwithstanding the verdict. He then appealed, arguing that the evidence presented at trial was insufficient to support the convictions.

Held: The Ninth Circuit Court of Appeals held that mere association with a conspirator and expert testimony was not sufficient evidence to determine the defendant entered into a conspiratorial agreement to distribute or import marijuana. The Court explained that “[t]he elements of conspiracy are ‘(1) an agreement to accomplish an illegal objective, and (2) the intent to commit the underlying offense.’ United States v. Moe, 781 F.3d 1120, 1124 (9th Cir. 2015).” Moreover, “to be convicted of conspiracy, the defendant must have joined the agreement knowing its purpose and intending to help accomplish that purpose. See United States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009).” The Court explained that the government had the burden of proving beyond a reasonable doubt the creation and existence of the conspiratorial agreement, and the defendant’s entry into that agreement.[40] The Court added that “‘[t]he government has the obligation to establish not only the opportunity but also the actual meeting of minds. Mere association and activity with a conspirator does not meet the test.”

The Court found that the combined evidence Espinoza-Valdez’s presence among the two men in a known drug trafficking corridor near the Mexican border, close to an apparent camp for drug trafficking scouts, and his possession of items of use in drug-trafficking activity was not sufficient for a jury to find beyond a reasonable doubt that he entered into a conspiratorial agreement to import or distribute marijuana. The Court observed that the case relied almost exclusively on expert testimony; that no evidence of actual drugs related to Espinoza-Valdez was presented; that no alleged fellow conspirators were identified. The Court found “no evidence as to what (if anything) was specifically agreed to, who agreed to it, or what any agreement was intended to accomplish.” The government had thus failed its evidentiary burden, and the Court accordingly reversed the conspiracy convictions.

In a dissent, Circuit Judge Rawlinson argued that the majority broke with binding precedent in its assessment of the sufficiency of evidence. The judge found that viewing the evidence in the light most favorable to the prosecution could lead to reasonable inferences that Espinoza-Valdez had entered into an agreement to serve as a lookout in the drug trafficking operation.


Communications configured by social media users to be public fall within the lawful consent exception of the Stored Communications Act, presumptively permitting social media provider disclosure.

Facebook, Inc. v. Superior Court of San Francisco, 2018 Cal. LEXIS 3635 (Cal. May 24, 2018)

Facts: Accused of charges including a June 2013 murder, Lee Sullivan and Derrick Hunter (“defendants”) served a subpoena duces tecum on one or more social media service providers (“Providers”), including Facebook, Inc., Instagram, LLC, and Twitter, Inc. The subpoenas broadly sought public and private communications, including any deleted posts or messages, from the social media accounts of the murder victim and a prosecution witness.

In response, the Providers moved to quash the subpoenas, stating that as providers they were prohibited from disclosing such communications to defendants by the Stored Communications Act[41] (“SCA”). The SCA regulates the conduct of covered service providers, declaring that they may not generally disclose stored electronic communications except as compelled by law enforcement entities using procedures such as search warrants or prosecutorial subpoenas or under specified circumstances (including with the consent of the social media user who posted the communication).

Providers based their motions to quash upon the SCA’s section 2702(a), which declares that a covered “person or entity” (encompassing providers here) “shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” Providers contended that this language barred a provider from revealing any communication, whether the social media user had configured the communication to be restricted to only authorized recipients (“private”) or placed no such restriction upon the communication (“public”). Providers further claimed that none of Section 2702(b)’s exceptions to the prohibition on provider disclosure applied to the sought after communications here.

Defendants apparently accepted Providers’ interpretation of the SCA and their assertion that it precluded Providers from complying with the subpoenas. However, defendants reasserted in their oppositions to the Providers’ motions to quash that they needed all of the requested communications to properly prepare for trial and defend against the pending murder charges. They presented user screenshots in support of such defense needs, including those allegedly showing the prosecution witness’ jealous anger towards defendant Sullivan. Defendants contended that if the SCA precluded Provider compliance with the pretrial subpoenas, then the SCA violated their constitutional rights under the Fifth and Sixth Amendments to the United States Constitution.

The trial court agreed with defendants’ constitutional contentions, effectively accepting the Providers’ SCA interpretation. The court denied Providers’ motions to quash, and ordered them to produce the requested communications for the court’s in camera review. Providers sought, and the Court of Appeal issued, a stay of the production order. After briefing and argument, the appellate court disagreed with the trial court’s constitutional conclusion and issued a writ of mandate, directing the trial court to quash the subpoenas. The Supreme Court of California granted review.

Held: The California Supreme Court held that communications configured by a social media user to be “public” fell within Section 2702(b)(3)’s lawful consent exception[42] to Section 2702’s prohibition on disclosure, presumptively allowing disclosure by a provider.

The Court reviewed the SCA’s language, its legislative history, and prior relevant case law. The Court observed that Viacom Int’l Inc. v. YouTube Inc., (S.D.N.Y. 2008) 253 F.R.D. 256 held that, although one who posts a communication (in that case, a YouTube video) with a “reasonable basis for knowing that it will be available to the public” should be considered to have implicitly consented to Section 2702(b)(3) disclosure. The opinion further stated that provider YouTube was barred under Section 2702(a) from disclosing videos that users had designated as private. The Court also discussed Crispin v. Christian Audigier, Inc.,[43] which held that communications configured by the user to be restricted in some manner fell within Section 2702’s prohibition on disclosure by providers and were not subject to a civil subpoena directed to those providers. However, the Court noted that the opinion provided that subpoenas would be enforceable if they sought public social media communications from providers. After its thorough discussion of the SCA, the Court concluded that communications configured by a social media user to be “public” fell within Section 2702(b)(3)’s lawful consent exception[44] to Section 2702’s prohibition on disclosure, presumptively allowing disclosure by a provider.

Defendants contended that even restricted communications could be considered the same as public communications for subpoena disclosure purposes under the lawful consent exception if directed to a “large group” of people. However, the Court rejected defendants’ expansive view and found that implied consent to disclosure by a provider was not established just because a private communication was made accessible to a large group of friends or followers. After an extensive discussion of related issues set forth in Negro v. Superior Court,[45] the Court also rejected Providers’ assertion that the SCA allowed them “discretion” to defy an otherwise proper criminal subpoena seeking public communications.

The California Supreme Court concluded that the Court of Appeal was correct to the extent that it found the subpoenas unenforceable under the SCA with respect to a user’s private communications. However, the Court also held that the appellate court incorrectly determined that Section 2702 barred a user’s public communications from disclosure. Pursuant to Section 2702(b)(3)’s lawful consent exception, providers must disclose any such public communication ordered by a properly authorized subpoena.

The Supreme Court explained that whether any given communication sought by the subpoenas in the present case fell within the lawful consent exception of Section 2702(b)(3), and must be disclosed by a provider pursuant to a subpoena, could not be resolved based on the current undeveloped factual record. The Court found that “the record before us is incomplete in these respects,” and that these concerns must be explored on remand. Accordingly, the Supreme Court vacated the Court of Appeal’s decision and directed it to remand the matter to the trial court to permit the parties to further develop the record so that the trial court could reassess the propriety of the subpoenas under the SCA in light of the Court’s decision.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 15, available at www.jones-mayer.com.

[1] 362 U.S. 257 (1960).

[2] In re Josh W., 55 Cal.App.4th 1 (1997).

[3] In re Victor L., 182 Cal.App.4th 902 (2010).

[4] 15 Cal.3d 481 (1975).

[5] Though Lent describes a three-pronged test to determine whether a probation condition will be held invalid, the

parties did not dispute that the other two of the three prongs were satisfied.

[6] 45 Cal.4th 375 (2008).

[7] United States v. Torres, 828 F.3d 1113 (9th Cir. 2016).

[8] Florida v. Wells, 495 U.S. 1 (1990).

[9] Torres, 828 F.3d at 1118 (9th Cir. 2016).

[10] 858 F.3d 1204 (9th Cir. 2017).

[11] United States v. Hellman, 556 F.2d 442 (9th Cir. 1977).

[12] 20 Cal.4th 119 (1999).

[13] The advisement read: “Drugs slash—drugs and alcohol: You are required to submit to a chemical test. Implied

consent of your blood: A sample of your blood will be taken by nursing staff at the hospital. If you fail to

adequately provide a sample, it will result in the suspension of your driving privilege for a period of one year.”

[14] Missouri v. McNeely, 569 U.S. 141 (2013).

[15] People v. Harris, 234 Cal.App.4th 671 (4th Dist. 2015).

[16] See Mincey v. Arizona, 437 U.S. 385 (1978).

[17] 384 U.S. 757 (1966).

[18] 569 U.S. 141 (2013).

[19] Florida v. Jimeno, 500 U.S. 248 (1991).

[20] Schmerber v. California, 384 U.S. 757 (1966).

[21] 536 U.S. 194 (2002).

[22] McBride v. Lopez, 807 F.3d 982 (9th Cir. 2015).

[23] 436 U.S. 658 (1978).

[24] Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001).

[25] 42 U.S.C. section 2000d.

[26] 815 F.3d 645 (9th Cir. 2016).

[27] Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010).

[28] District of Columbia v. Wesby, 138 S. Ct. 577 (2018)

[29] 416 U.S. 505 (1974).

[30] Gov. Code section 3300 et seq.

[31] Graffiti Protective Coatings, Inc. v. City of Pico Rivera, 181 Cal.App.4th 1207 (2nd Dist. 2010).

[32] Described as restraining “handcuffs connected to a waist chain, with legs shackled.”

[33] The Fifth Amendment of the United States Constitution declares that no one shall be “deprived of life, liberty or

property, without due process of law.”

[34] Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66 (2013).

[35] 420 U.S. 103 (1975).

[36] 419 U.S. 393 (1975).

[37] Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66 (2013).

[38] Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969 (2016).

[39] Turner v. Rogers, 564 U.S. 431 (2011).

[40] United States v. Loveland, 825 F.3d 555, 559 (9th Cir. 2016).

[41] 18 U.S.C. section 2701 et seq.

[42] Section 2702(b)(3): “Exceptions for disclosure of communications. A provider … may divulge the contents of a

communication– with the lawful consent of the originator or an addressee or intended recipient of such


[43] 717 F. Supp. 2d 965 (C.D. Cal. 2010).

[44] Section 2702(b)(3): “Exceptions for disclosure of communications. A provider … may divulge the contents of a

communication– with the lawful consent of the originator or an addressee or intended recipient of such


[45] 230 Cal.App.4th 879 (6th Dist. 2014).