CPOA CASE SUMMARIES – NOVEMBER 2017

Courtesy of James R. Touchstone, Esq.

CONSTITUTIONAL LAW

 

  1. A defendant may challenge evidence found in a searched vehicle as the fruit of an unlawful detention, even if the defendant lacked a reasonable expectation of privacy in the searched vehicle.

Brewer v. Superior Court, 16 Cal. App. 5th 1019 (1st Dist. 2017)

FactsIn September 2016, while on patrol, Detective Cliff Calderan observed a red minivan parked in the parking lot of an apartment complex. The complex was claimed by a street gang and located in a high-crime area of the city. The driver, a front passenger, and Defendant Lamante Brewer, who was sitting in the rear passenger seat, were inside the van. Calderan and other officers approached the van with their guns drawn and directed Defendant and the other occupants of the vehicle to put their hands up. Calderan approached the front passenger seat, where he located marijuana in the possession of the front passenger. After ordering the occupants out of the vehicle, the officers conducted a search of the vehicle. During the search, they located a loaded handgun underneath the driver’s seat, in front of where Defendant had been seated.

Defendant was charged with three gun possession crimes. At his preliminary hearing, he moved to suppress the gun evidence, arguing it was obtained in violation of his Fourth Amendment rights. The magistrate denied the motion, concluding that Defendant did not have a reasonable expectation of privacy in the vehicle. After the prosecution filed an information, Defendant moved under Penal Code section 995[1] to set aside the information, renewing his argument that the gun evidence should be suppressed. The trial court denied the motion, stating that, while it was clear that the officers detained Defendant without reasonable suspicion, Defendant failed to establish a reasonable expectation of privacy in the vehicle where the police located the gun.

Defendant filed a petition for writ of mandate directing the trial court to grant his motion to set aside the information.

HeldThe First District Court of Appeal held that a defendant may challenge evidence found in a searched vehicle as fruit of an unlawful detention, even if the defendant lacked a reasonable expectation of privacy in the searched vehicle. In reaching its decision, the Court explained that, while it has long been established that an individual cannot challenge the introduction of evidence obtained in an allegedly unlawful search unless that person had a reasonable expectation of privacy in the object seized or place searched, Defendant was not challenging the lawfulness of the search. Rather, he was arguing that he was unlawfully detained by police, and that the gun police found during the subsequent search should be suppressed as fruit of the unlawful detention. The Court explained that there was an abundance of authority from other jurisdictions that supported Defendant’s argument.

Thus, based on the case law from other jurisdictions and the Supreme Court’s decision in Brendlin v. California,[2] the Court held that a defendant may challenge evidence found in a searched vehicle as fruit of an unlawful detention, even if the defendant did not have a reasonable expectation of privacy in the searched vehicle.

  1. Warrantless search of vehicle dashboard console is permissible under the “automobile exception” when supported by probable cause.

People v. Zabala, 17 Cal. App. 5th 22 (6th Dist. 2017)

FactsDefendant Zabala, while driving with a suspended license, was stopped by a Santa Clara County Sheriff’s deputy for a traffic infraction. His vehicle was searched following the deputy’s decision to impound it. The deputy found baggies filled with a white substance in a paper bag under the driver’s seat. She showed those baggies to Deputy Dorsey, who thought the substance might be cocaine. After field testing produced negative results, Dorsey concluded it was a cutting agent to be mixed with a controlled substance.

Dorsey then noticed that the radio console “looked loose, like it had been manipulated.” Using his pocket knife, Dorsey removed the console, which was loose, and between air conditioning ducts behind the stereo he found several bags of a white crystalline substance that he recognized as methamphetamine. Defendant was charged with possession for sale of methamphetamine, transportation of methamphetamine, and driving with a suspended license. Defendant had four prior narcotics convictions.

Defendant urged the trial court to find that the methamphetamine retrieved from behind the dashboard console without a warrant should be excluded as fruit of an unlawful inventory search.  The trial court denied defendant’s motion to suppress the evidence. Defendant appealed.

HeldThe Sixth District Court of Appeal held that the removal of a dashboard console exceeds the scope of a permissible inventory search incident to an arrest without a warrant. However, the Court also held that if, under the circumstances of a particular case, independent probable cause exists to support a search involving removal of a dashboard console, then the search is permissible without a warrant under the automobile exception to the warrant requirement. In Defendant’s case, the warrantless removal of the console was improper as an inventory search alone; however, it was supported by independent probable cause and was, therefore, lawful.

Inventory Search

In analyzing the issue of whether the search of the dash console complied with the inventory search doctrine, the Court initially noted that, “The United States Supreme Court has recognized that automobiles are frequently impounded as part of a local police agency’s community caretaking function, and police agencies will routinely secure and inventory a vehicle’s contents in that process.  (South Dakota v. Opperman (1976) 428 U.S. 364, 368–369 [49 L. Ed. 2d 1000, 96 S. Ct. 3092].)” The Court further observed that, “In Bertine, the United States Supreme Court upheld as reasonable a vehicle inventory search that extended into canisters located in a closed backpack behind the driver’s seat. (Bertine, supra, 479 U.S. at p. 369.)” Finally, the Court stated that, “Illustrating the limits of Bertine, the Supreme Court in Florida v. Wells (1990) 495 U.S. 1 [109 L. Ed. 2d 1, 110 S. Ct. 1632] held that the search of a locked suitcase in the trunk of an impounded car was unreasonable as an inventory search because the police agency had no policy with regard to the opening of closed containers. (Id. at pp. 4–5.)

The Court further noted that, in People v. Andrews,[3] a prior case discussing the right of police to inventory the contents of a lawfully impounded car: “The inventory must be reasonably related to its purpose which is the protection of the car owner from loss, and the police or other custodian from liability or unjust claim. It extends to the open areas of the vehicles, including such areas under seats, and other places where property is ordinarily kept, e.g., glove compartments and trunks. It does not permit a search of hidden places, certainly not the removal of car parts in an effort to locate contraband or other property. The owner having no legitimate claim for protection of property so hidden and the police could have no legitimate interest in seeking it out.”

In general, the Court observed that inventory searches of vehicles incident to arrest are permissible without a warrant as long as they do not exceed the scope of lawful department policy. In this case, the department’s inventory policy limited searches to places in the vehicle where people commonly put items of value, including under the seat, the glove compartment, the center console, and the trunk. The policy also allowed for the opening of closed containers within the vehicle. The Court found that a concealed area behind the dashboard console was not an area where people commonly put items of value, nor is it a “closed container”, such as a suitcase, box, or backpack. Therefore, the Court held the removal of the dashboard console and a search therein was not a lawful inventory search.

Probable Cause for Search

The Court then analyzed whether the search of the dash console was permissible under some other recognized exception to the warrant requirement. The Court noted that, “[i]n Arizona v. Gant (2009) 556 U.S. 332 [173 L. Ed. 2d 485, 129 S. Ct. 1710], the United States Supreme Court held that the passenger compartment of an automobile may be searched incident to the arrest of an occupant of the vehicle when the arrestee is unsecured and within reach of the vehicle at the time of the search. (Id. at p. 343 & fn. 4.)”  Gant ultimately held that the search of an automobile incident to arrest was confined to the following: “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

The Court further stated, however, that, “Gant recognized ‘[o]ther established exceptions to the warrant requirement authorize a vehicle search,’ including a search based on probable cause to believe that a vehicle contains evidence of criminal activity other than the offense of the arrest. (Arizona, at pp. 346–347, citing United States v. Ross, supra, 456 U.S. at pp. 820–821.) The Supreme Court has also held that ‘[a] vehicle lawfully in police custody may be searched on the basis of probable cause to believe that it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search.’ (United States v. Johns (1985) 469 U.S. 478, 484 [83 L. Ed. 2d 890, 105 S. Ct. 881].”

In applying these cases, the Court stated that whether probable cause existed depended on the facts and must be determined on a case-by-case basis. In the present case, the Court found the existence of probable cause based on the following facts: (1) the officer was trained to recognize how illegal drugs are packaged and transported; (2) the officer discovered under the driver’s seat what appeared to be several plastic baggies of a controlled substance and/or a cutting agent to be mixed with a controlled substance to increase the volume; (3) the officer noticed that the radio console looked as though it had been manipulated previously, such that the clearance between the actual dashboard and the plastic trim looked enlarged, like it has been removed and replaced; which to him was indicative of a possible hidden compartment; and (4) the driver had four prior narcotics convictions.  As such, the search was legal pursuant to the independent facts giving rise to probable cause for a search of the vehicle under the automobile exception to the warrant requirement.

The Court affirmed the denial of the motion to suppress.

For a more detailed discussion relating to this case, please see Client Alert Vol. 32, No. 33, authored by James R. Touchstone and available at www.jones-mayer.com.

  1. Defendant’s confession not involuntary where interrogating officer’s allegedly improper promises of leniency not “causally linked” to defendant’s confession, which began before promises.

People v. Wall, 3 Cal. 5th 1048 (2017)

Facts:  Randall Clark Wall pleaded guilty to the first-degree murders of Katherine and John Oren as well as four special circumstances. At the penalty phase, the jury returned a verdict of death. On automatic appeal to the California Supreme Court, Wall argued that the trial court committed error in admitting into evidence during the penalty phase the tape recording and transcript of his confession to police officers. He argued the confession was obtained through psychological coercion and improper inducement as a result of the officers’ exploitation of his stated fear of his co-defendant and their promises that he could be with his wife and his child and start fresh if he told them what happened.

The Orens were killed on March 1, 1992. Following their murders, Wall and his co-defendant had traveled to San Francisco. On March 17, 1992, San Francisco homicide detectives approached Wall in San Francisco, and transported him to the San Francisco Hall of Justice, where he waited in an open interview room for approximately five hours until two San Diego police detectives arrived. While he waited, he was told he was permitted to leave, he used the restroom unescorted, attempted to make phone calls, and was provided with food and drink by San Francisco officers. When the San Diego detectives arrived, they told Wall he was not under arrest, but suggested he may be a witness to a very serious crime, and read him a Miranda v. Arizona[4] warning. Wall’s interview started at 10:00 p.m. and lasted for about two hours.

During the interview, Wall changed his story about his travels and arrival to San Francisco. About one hour into the interview, the detectives questioned Wall about his inconsistent initial statement, and he indicated that he was scared and did not want any problems, and wanted to get back to his wife and child. The detectives responded that they did not think he was telling them the whole truth and suggested that he may have been faced with a situation that got out of control. Wall then stated that “he [his co-defendant] kind of pressured me into it.” The detective responded that he could see that it was bothering Wall and encouraged Wall to tell him about it. The detective stated that Wall was at a crossroads and had two possible directions he could go. The first way would result in him getting stuck his whole life. The second way, which involved him telling the detectives what happened, would get everything out in the open, allow him to put it behind him, and then he could go on with his life and be with his wife and child and start fresh.

Wall responded that he was worried about his co-defendant, who had told him that he would have him killed if he told police what happened. The detectives responded that Wall should not worry about his co-defendant, because he sounded like a “bullshitter.” Wall then explained that the co-defendant pressured him into it and he did not want to do it, but that he and the co-defendant killed the “grandma and grandpa” of the household [Katherine and John Oren]. The detectives questioned Wall about the killings, and he described them in detail.

During the guilt phase of the trial, the prosecution showed only part of the interview, stopping before the detectives’ challenged statements and Wall’s confession. During the penalty phase, the prosecution played the whole interview. On appeal, Wall challenged the effect of the admission of his allegedly coerced confession on the jury’s sentence of death.

HeldThe California Supreme Court held that because the detective’s promise of leniency was not the cause of Wall’s confession, Wall’s confession was not involuntary. In reaching its decision, the Court explained that the California and federal constitutions bar the introduction of a defendant’s involuntary confession into evidence at trial. The Court explained that a confession is involuntary if the influences brought to bear on the accused were such as to overpower the accused’s will to resist and bring about confessions not freely self-determined. Courts consider the totality of circumstances in determining the voluntariness of a confession, looking at factors such as whether the confession was extracted by threats of violence, obtained by direct or indirect promises, or secured by exertion of improper influence. If a person of authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is considered involuntary and inadmissible.

Wall argued the detectives’ statements relating to going on with his life and being with his wife and child constituted an implied promise that if he told the truth, he would be granted leniency, in that he would be able to go on with his life and start fresh. The Attorney General argued that any promise of leniency was not the cause of Wall’s confession. The Court agreed with the Attorney General, noting that before the detective began his statement about the crossroads, Wall had already begun to tell the detectives about the events at the Orens’ home, and that he used the same opening sentence after the alleged promise of leniency as before—he stated that his co-defendant pressured him into it. The Court also explained that the circumstances of Wall’s interrogation and his personal characteristics did not unduly heighten the pressure on Wall to confess. It noted that, while he waited for the San Diego detectives, he was allowed to eat, smoke, make phone calls, and leave the room, he was not under arrest at any point and had told the San Diego detectives he had gone to the station voluntarily, and the interview lasted just two hours. Although detectives described Wall as stressed and scared, the Court found his answers in the interrogation transcript appeared coherent and deliberate. The Court also rejected Wall’s argument that the detectives exploited his fear of his co-defendant. The Court noted Wall cited no statements that constituted exploitation, and further noted that the detectives, prior to Wall’s confession, told him not to think about his co-defendant and that he sounded like a “bullshitter.” They also told him after the interview that they would try to protect him from the co-defendant, which the Court noted was after Wall confessed and therefore not conditioned upon Wall’s cooperation.

Thus, the Court concluded that because the detective’s promise of leniency was not a cause of Wall’s confession, Wall’s confession was therefore not involuntary.

  1. Officers lacked reasonable suspicion to detain police officer trainee, and thus there was no probable cause to arrest him.

Cornell v. City & County of San Francisco, 2017 Cal. App. LEXIS 1011 (1st Dist. Nov. 16, 2017)

FactsAround 7:00 a.m. one morning in July 2010, Bret Cornell, a San Francisco Police Department (“SFPD”) field officer trainee, went for a jog in Golden Gate Park after finishing a night shift. At one point during his run, he stopped for a rest on a hill known as Hippie Hill, which was an area known for elicit drug activity. Two SFPD officers that were patrolling the area saw Cornell, thought he looked “worried,” and became suspicious because of Hippie Hill’s reputation. The officers began to approach Cornell, but before they reached him or said anything to him, he resumed his run.

The officers, along with two other officers who responded to a call for backup, gave chase. One officer, with his gun drawn, eventually caught up to Cornell. Cornell was not aware he was being chased or that the officers wanted to speak to him. When the officers got close enough to confront him, they observed that Cornell was clean cut, had nothing in his hands, and was not doing anything threatening. One of the officers yelled, “I will shoot you.” When Cornell looked back, he saw a dark figure pointing a gun at him, so he ran away at full speed.

Cornell eventually reached another police officer, who ordered him to the ground. Cornell was arrested at gunpoint and searched. Cornell was not advised that he was under arrest or the basis for the arrest. During the search, the officers located Cornell’s police identification and standard-issue handcuffs. At that point, seven minutes after the initial encounter on Hippie Hill, Cornell told the arresting officers he was a police officer and that he was out for a run. Officers searched his vehicle and found his gun inside, where he indicated it was located. Cornell was transported in handcuffs to a nearby station for interrogation. He repeatedly asked what the charge was, but his question was not answered.

Because Cornell reported that he was in physical distress, paramedics were called and he was taken by ambulance to a nearby hospital. One of the arresting officers arranged to place a hidden recording device in the ambulance, “because [he] might say something stupid.” The device did not record anything incriminating. While at the hospital, a sample of Cornell’s blood was taken and tested for the presence of narcotics. The blood draw was negative.

After Cornell was cleared at the hospital, he was taken back to the station, and eventually released after spending approximately six hours in custody. When he was processed for release, he was handed a misdemeanor citation that accused him of violating Penal Code section 148(a), for resisting or delaying an officer in the course of his duties. The citation was signed by one of the arresting officers and approved by a sergeant. Criminal charges were never brought against Cornell. Two days after his arrest, pursuant to SFPD policy requiring termination for misconduct of any police officer trainee, SFPD released Cornell from his employment, ending his career with SFPD and effectively disqualifying him from obtaining a law enforcement position with another agency.

Cornell sued the four arresting officers, the Chief of Police, and the City and County of San Francisco for damages. The trial court, following phase one of a bifurcated jury trial, relying on findings of fact by the jury, determined that Cornell was arrested without probable cause, establishing liability for false arrest and causing the defense to stipulate to liability for negligence. In phase two, the jury returned a verdict for Cornell on the remaining claims, including his Civil Code section 52.1[5] claim, and awarded damages of approximately $575,000. After trial, the court added approximately $2 million in attorneys’ fees.

Defendants appealed.

HeldThe First District Court of Appeal held that the trial court correctly found that there was no reasonable suspicion for the arresting officers to detain Cornell, and thus there was no probable cause to arrest him. In reaching its conclusion, the Court explained that, for a detention to be reasonable under the Fourth Amendment, the detaining officer must be able to point to specific articulable facts, considered in light of the totality of the circumstances, that provide an “objective manifestation” that the person detained may be involved in criminal activity. Since Cornell was arrested for violation of Penal Code section 148(a), the Court explained that the analysis was focused on whether there was a reasonable suspicion justifying Cornell’s detention at any point between when he was spotted on Hippie Hill and when he was arrested. The Court explained that such analysis would drive the probable cause analysis because, if there was no objectively reasonable basis to believe that Cornell violated Penal Code section 148(a) or any other law, then probable cause was lacking as well.

Looking at the totality of the circumstances, the Court noted that the incident took place in broad daylight, that, at the time they started to give chase, the officers knew little more than that they had seen Cornell in a place where drug crimes often took place, but there was nothing connecting him to any criminal activity, that he had nothing in his hands and did not make any furtive movements, that his clothing did not suggest that he might be hiding something, and that he did not receive any directions from the officers that he disobeyed. The Court noted that even if, as the officers believed he had done, Cornell was deliberately trying to avoid the officers, that did not change things, because not every effort to avoid an encounter with police warrants detention.

Thus, because there was nothing objectively tying Cornell to criminal activity, the Court concluded that the officers did not have a legal basis to detain Cornell, much less probable cause to arrest him, at any point from when they saw him on Hippie Hill to when they ultimately arrested him.

Bane Act Claim

The Court also upheld the finding for Cornell on his Civil Code section 52.1 claim. In reaching its conclusion, the Court first held that where an unlawful arrest is properly pleaded and proved, the egregiousness required by Section 52.1 is tested by whether the circumstances indicate the arresting officer had a specific intent to violate the arrestee’s right to freedom from unreasonable seizure. The Court explained that there are two requirements for a finding of “specific intent.” The first question, which must be determined by the court, is whether the right at issue is clearly delineated and plainly applicable under the circumstances of the case. If the court determines that it is, then the jury makes the second determination of whether the defendant committed the act with the particular purposes of depriving the victim of his or her enjoyment of the interests protected by that right.

Applying the first step, the Court concluded that Cornell’s federal and state constitutional right to be free from arrest without probable cause was clearly delineated and plainly applicable. As to the second requirement, the Court explained that reckless disregard of the “right at issue” was all that was necessary. The Court noted a rational jury, considering the evidence surrounding the arrest in its full context, could have concluded that the officers were unconcerned about whether there was legal cause to detain Cornell, and, even when they realized their error, they “doubled down”, knowing they were inflicting grievous injury on their arrestee. Reviewing the evidence, the Court noted that the officers had every opportunity to exercise restraint as it became clearer and clearer that their initial suspicions about Cornell were unfounded, but instead of letting the matter go when they released him, they retaliated against him as a way of undermining his ability to claim to superiors that he was arrested without probable cause. The Court explained that the apparent effort to obstruct Cornell’s ability to assert his right to be free from unreasonable seizure violated Section 52.1 just as certainly as his arrest did. Thus, based on the record, the Court concluded that the specific intent standard was met.

The Court affirmed the judgment and award of attorneys’ fees.

QUALIFIED IMMUNITY

Officer not entitled to qualified immunity on excessive force claim where reasonable jury could find that firing nine additional rounds at suspect and then stomping on his head was unreasonable.

Zion v. County of Orange, 2017 U.S. App. LEXIS 21802 (9th Cir. Nov. 1, 2017)

FactsAfter suffering several seizures, Conner Zion had an episode during which he bit his mother and cut her and his roommate with a kitchen knife. Police were called. When Orange County Sheriff’s Department Deputy Juan Lopez arrived at Zion’s apartment complex, Zion ran at him and stabbed him in the arms. Deputy Michael Higgins arrived separately, and witnessed the attack on Lopez. Zion then ran toward the apartment complex. Higgins fired nine shots at Zion from about fifteen feet away. Zion fell to the ground. Higgins then ran to where Zion fell and fired nine additional rounds at Zion’s body from about four feet away. Zion curled up on his side, but was still moving. Higgins paused, walked in a circle, and then, taking a running start, stomped on Zion’s head three times. The dashboard cameras of each officer’s cruiser captured the shooting and stomping.

Zion died at the scene. Zion’s mother filed suit under 42 U.S.C. § 1983, claiming, among other things, that Higgins used excessive force. The district court granted summary judgment to defendants on all claims. Zion’s mother appealed.

HeldThe Ninth Circuit Court of Appeals held that the defendants were not entitled to qualified immunity on the Fourth Amendment claim. In reaching its decision, the Court explained that police use of force is excessive and violates the Fourth Amendment if it is objectively unreasonable under the circumstances. Reasonableness is assessed using the non-exhaustive Graham v. Connor[6] factors, which include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Whether the suspect posed an immediate threat is considered the most important factor.

Zion’s mother did not challenge the initial nine rounds fired by Higgins, but rather the second nine rounds and the head-stomping. The Court noted that by the time Higgins fired the second nine rounds, Zion had fallen to the ground, appeared wounded, and was not making any threatening gestures. The Court noted that a reasonable jury could find that Zion did not pose an immediate threat, and that Higgins should have held his fire until Zion demonstrated signs of danger or flight, or that the second round of bullets was justified, but the head-stomping was not.

The Court, in response to defendants’ argument that the continued use of force was reasonable because Zion was still moving, explained that terminating a threat does not mean terminating the suspect. If a suspect is on the ground and appears wounded, the suspect may no longer pose a threat, and a reasonable officer would reassess the situation rather than continue the shooting. The Court found that a reasonable jury could find that Higgins could have sufficiently protected himself and others once Zion fell by pointing his gun at him and firing only if Zion attempted to flee or attack.

The Court explained that the Fourth Amendment right was clearly established, noting that there are cases that have held that the use of deadly force against a non-threatening suspect is unreasonable. It further noted that it held in prior cases that continued force against a suspect that has been brought to the ground can violate the Fourth Amendment. As such, the Court explained, if a jury were to find that Higgins shot and/or stomped Zion’s head after Zion no longer posed an immediate threat, Higgins would have been on notice that his conduct would be clearly unlawful. Therefore, the Court concluded, defendants were not entitled to qualified immunity.

IMMIGRATION DETAINERS

District court concludes that the Fourth Amendment does not require judicial review of ICE officers’ probable cause determinations.

Roy v. County of Los Angeles, 2017 U.S. Dist. LEXIS 138911 (C.D. Cal. June 12, 2017)

FactsPlaintiffs Geraldo Gonzalez and Simon Chinivizyan (“Plaintiffs”) are both United States’ citizens. At the time they brought their lawsuit against Los Angeles County, they were each being held in a Los Angeles jail pursuant to Immigration and Customs Enforcement (“ICE”) detainers. Plaintiffs’ operative complaint was filed in August 2014. In July 2015, the Court consolidated the Roy v. County of Los Angeles and Gonzalez v. Immigration & Customs Enforcement cases.[7]

In May 2016, Plaintiffs moved to certify a “Judicial Determination Class,” defined as “All current and future persons who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject to ongoing removal proceedings. Plaintiffs proposed Judicial Determination Class will seek rescission of class members’ detainers and a declaration that Defendants’ issuance of detainers against class members without providing a judicial determination of probable cause violates the Fourth Amendment.” The Court granted the motion for class certification, but limited the Judicial Determination Class to only those who had been detained for at least 48 hours without receiving a judicial determination of probable cause.

In February 2017, Plaintiffs filed a Motion for Partial Summary Judgment as to the Judicial Determination Class and ICE’s policy of failing to provide a judicial probable cause determination within 48 hours of detention. Plaintiffs argued that Defendants violated their Fourth Amendment rights by detaining them pursuant to an ICE detainer without ever providing them with a judicial determination of probable cause for their detainment, in violation of the 48-hour judicial determination requirement set forth in County of Riverside v. McLaughlin.[8] Defendants argued that judicial review of probable cause determinations set forth on ICE detainer forms is not required in the immigration context.

HeldThe Central District Court, on its own motion, granted summary judgment in favor of Defendants, concluding that the Fourth Amendment does not require judicial review of ICE officers’ probable cause determinations set forth on ICE detainer forms.

In reaching its decision, the Court first outlined the immigration statutory scheme. It explained that ICE is responsible for identifying, apprehending, and removing illegal aliens from the country, and that the Immigration and Nationality Act (“INA”) grants ICE the authority to arrest and detain aliens prior to removal.[9] Pursuant to implementing regulations issued by the Department of Homeland Security, an alien arrested without a warrant must be examined by an ICE officer other than the arresting officer, unless no other officer is available and finding another officer would entail unnecessary delay.  The regulations provide that if the examining officer is satisfied that there is prima facie evidence that the arrested alien was entering, attempting to enter, or is present in the United States in violation of immigration laws, the examining officer will refer the case to an immigration judge for further inquiry.  Based on these regulations, the Court noted that it appears the Legislature has permitted an ICE officer to determine probable cause on his or her own and has permitted review of the arresting ICE officer’s probable cause determination by another ICE officer.

Here, the Court explained, ICE issues immigration detainers as part of the arrest and detainment process.  The immigration detainer forms require ICE officers to indicate they have probable cause to detain the individual as a removable alien and the basis for their probable cause determination. Defendants conceded that the ICE officers’ probable cause determinations are not judicially reviewed.  Rather, pursuant to applicable regulations, a detainee is taken before an ICE agent for processing into physical custody.

In assessing each party’s arguments, the Court noted that courts have consistently recognized that immigration proceedings are civil, rather than criminal, in nature and their implementation falls primarily within the legislative and executive, not judicial, branches of government.  It also noted that it appears courts have recognized that the executive and legislative branches have the authority to permit executive officers rather than judicial officers to make probable cause determinations.  It further noted that the cases relied upon by Plaintiffs recognize that there are differences in protections afforded to individuals in criminal proceedings as compared to civil immigration proceedings.

Noting that it must give deference to the executive and legislative branches in the immigration context and the distinction between protections afforded in criminal cases as compared with civil immigration proceedings, the Court found that it is not unconstitutional under the Fourth Amendment for the Legislature to delegate a probable cause determination authority to an executive officer, such as an ICE agent, rather than to an immigration, magistrate, or federal court judge.

The Court noted that its analysis would be different if Plaintiffs were alleging that Defendants failed to provide any probable cause determination within 48 hours, but Plaintiffs did not make such allegations. Instead Plaintiffs alleged that their Fourth Amendment rights were violated because they were not granted judicial review of ICE officers’ probable cause determinations. Noting the Legislature has determined that removal pursuant to ICE officers’ probable cause determinations and examinations by ICE officers is sufficient in the civil immigration context, which appears to be within its purview, the Court indicated it was bound to follow precedent finding that the Fourth Amendment does not require judicial review of ICE officers’ probable cause determinations.

For a more detailed discussion relating to this case, please see Client Alert Vol. 32, No. 32, authored by James R. Touchstone and available at www.jones-mayer.com.

[1] Section 995 provides that the court shall set aside an information if the defendant has been committed without reasonable or probable cause. Penal Code § 995(a)(2)(B).

[2] 551 U.S. 249 (2007).

[3] 6 Cal. App. 3d 428 (1st Dist. 1970).

[4] 384 U.S. 436 (1966).

[5] “(a) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured.…”

[6] 490 U.S. 386 (1989).

[7] This action involves two consolidated cases, Duncan Roy et al. v. County of Los Angeles et al.  (Case No. 12-cv-09012-BRO-FFM) and Gonzalez v. Immigration & Customs Enforcement et al. (Case No. 13-cv-04416-BRO-FFM). The motion at issue before the Central District Court was brought by plaintiffs in the Gonzalez matter. “Plaintiffs” as used in this summary refers to the Gonzalez plaintiffs.

[8] 500 U.S. 44 (1991) (finding that a probable cause determination within 48 hours following arrest is reasonable).

[9] “Specifically, the INA provides that ‘[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.’ 8 U.S.C. § 1226(a). An ICE officer may arrest an alien without a warrant ‘if he has reason to believe that the alien so arrested is in the United States in violation of any . . . law or regulation and is likely to escape before a warrant can be obtained for his arrest,’ so long as the alien is taken ‘without unnecessary delay for examination before an officer of [ICE] having authority to examine aliens as to their right to enter or remain in the United States.’ See 8 U.S.C. § 1357(a)(2).”





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