CPOA Case Summaries – October 2016

Provided by Brittany E. Roberto and Martin J. Mayer of Jones & Mayer

CONSTITUTIONAL LAW

  1. In re Arturo D. remains good law, permitting an officer’s warrantless search of a driver’s purse for identification.

People v. Lopez, 2016 Cal. App. LEXIS 913 (Cal. App. 3d Dist. Oct. 27, 2016)

Facts: On July 4, 2014, Woodland Police Department Officer Jeff Moe received two calls from dispatch regarding a report of a car driving erratically at two separate intersections. After the first call, he did went to the intersection identified, but did not locate the car reported. He had dispatch run the license plate number of the car, and then went to the address associated with the license plate number. The car was not there, so Officer Moe resumed his patrol duties. Following the second call, during which dispatch reported the driver was identified as “Marlena” and was reported to have been drinking all day, Officer Moe went to the intersection identified, and again did not locate the car. Officer Moe returned to the address associated with the car’s license plate number, and parked nearby. A few minutes later, the car pulled up and parked at the address associated with the license plate number.

Defendant Maria Elena Lopez was the driver of the car. Officer Moe did not notice her driving erratically and did not observe any Vehicle Code violations. When Defendant exited the car, Officer Moe approached her and asked her whether she had a driver’s license. She indicated that she did not have a license, so Officer Moe asked whether she had any form of identification. Defendant responded that she might have identification in the car. Officer Moe did not smell alcohol and Defendant did not appear intoxicated while Officer Moe spoke to her. Officer Moe handcuffed Defendant as another officer looked into her car and noticed a purse on the front passenger seat. The officer removed the purse from the car and handed it to Officer Moe, who opened the purse to search for Defendant’s identification. In searching for the identification, Officer Moe found a small amount of methamphetamine in the pocket of Defendant’s purse.

At trial, Defendant moved to suppress the evidence of the methamphetamine found in the purse, arguing Office Moe observed no violation of law and detained Defendant without any articulable suspicion since the reports of her driving erratically and being intoxicated proved to be unreliable after he encountered Defendant. The trial court granted the motion to suppress. The court concluded that the initial interaction between Defendant and Officer Moe was not a detention, but instead was a consensual encounter during which Officer Moe requested her driver’s license. However, the court found that although Officer Moe had probable cause to arrest Defendant for driving without a driver’s license, he did not have probable cause to arrest her for driving under the influence, and, therefore, it concluded it was compelled to follow Arizona v. Gant[1] and granted the motion to suppress.

The trial court dismissed the case against Defendant, and the State appealed.

Held:  When Defendant stated she did not have a driver’s license, the officers were justified in detaining Defendant because Officer Moe witnessed Defendant driving and her statement was an admission that she was driving without a license in violation of Vehicle Code section 12500(a).[2] Further, Defendant’s statement that she had other identification in her car made a limited search for that identification permissible.

In reaching its decision, the Third District, assessing precedent, first concluded that Defendant was not detained during the initial encounter, noting that a request for identification does not turn a consensual encounter into a detention. Next, the Court found that Defendant’s statement that she did not have a driver’s license supplied Officer Moe justification for the detention that subsequently occurred, since she admitted to violating Vehicle Code section 12500(a) by driving without a license.

Next, the Court found that the search of the purse was within the scope authorized by In re Arturo D.,[3] a case the Court found was still good law, noting a statement from the concurring and dissenting opinion that the most traditional storage location for a driver’s license is a person’s wallet, typically worn on his person if a man, or carried in a purse if a woman. Therefore, Officer Moe’s limited search for identification in a specific location, Defendant’s purse, was consistent with applicable law and the evidence derived from that search was admissible.

Thus, the Court reversed the trial court’s order granting the motion to suppress the evidence found in Defendant’s purse and dismissing the case against her.

  1. An individual has no reasonable expectation of privacy in his or her computer’s shared folder associated with a peer-to-peer network used to share child pornography.

People v. Evensen, 2016 Cal. App. LEXIS 917 (Cal App. 1st Dist. Oct. 27, 2016)

Facts: In February 2013, Napa Police Department Office Darlene Elia used the website RoundUp to look for Internet Protocol (IP) addresses in Napa County used to download or share child pornography. Officer Elia searched all available peer-to-peer networks, and her search returned an IP address that was seen using eMule, a program that creates a shared folder on each user’s computer to which all downloaded files are automatically placed, first in September 2011 and last in December 2012.

RoundUp is a software that enables law enforcement officials to detect child pornography on peer-to-peer file-sharing networks. Officers input to RoundUp a set of digital fingerprints, known as a “hashes,” of known child pornography files, and then the software searches peer-to-peer networks for them. RoundUp compiles information from files stored in users’ shared folders, which are accessible to other users unless default settings are changed or the files are transferred to other folders, then reports IP addresses of computers that have downloaded files with hashes of known child pornography, and red flags files known to be child pornography.

After finding the IP address that had used eMule, Officer Elia looked at RoundUp’s historical list for the IP address, and found over 200 red flags. Officer Elia used a public website and determined that the IP address was registered to Comcast. She then obtained and executed a search warrant for Comcast records and found that, on the date the eMule website was last used by that IP address in December 2012, the subscriber for the IP address was the mother of Richard Patrick Evensen. Officer Elia then obtained a second search warrant for Evensen’s mother’s home. Officer Elia executed the search warrant, searched Evensen’s room, and arrested Evensen. After she read Evensen his Miranda v. Arizona[4] rights, Evensen told Officer Elia that he had been viewing child pornography for a while, confirmed that all of the computers and hard drives in his room belonged to him, and estimated that he had approximately 30 gigabytes of child pornography on his hard drives, which he had primarily obtained using peer-to-peer file sharing software. A forensic examination of his laptop and external hard drives revealed over 200 videos and images of child pornography.

After Evensen’s arrest was made public, evidence of other sex crimes came to light. Evensen was charged with several sex crimes. At his trial, he filed a motion to suppress, arguing that the use of the RoundUp software was an unconstitutional search and that all evidence against him should be suppressed since it derived from the search. The trial court denied the motion, and Evensen pled no contest to a series of sex crimes. Evensen appealed the denial of his motion to suppress.

Held: Evensen had no reasonable expectation of privacy in his shared folder associated with the peer-to-peer network, and therefore there was no Fourth Amendment violation. In reaching its decision, the First District explained that, generally, computer users have an objectively reasonable expectation of privacy in the contents of their computers. However, there are exceptions to the general rule, including the exception that computer users have no reasonable expectation of privacy in the contents of a file that had been downloaded to a publicly accessible folder through file-sharing software.

The Court found the decisions in U.S. v. Ganoe[5] and U.S. v. Borowy[6] instructive. Although Evensen attempted to distinguish himself from the defendants in Ganoe and Borowy, arguing that he took several measures to keep the contents of his computer private, such as transferring files from his shared folder to inaccessible locations and changing his default settings, the Court found there was substantial evidence to support the trial court’s determination that Evensen did not have a reasonable expectation of privacy. The Court noted that Evensen admitted he did not always immediately move files out of the shared older and that he could not claim the shared folder was at all times private. Further, RoundUp would have detected Evensen’s files even if they were never made publicly accessible.

Therefore, there was no Fourth Amendment violation because Evensen had no reasonable expectation of privacy in his shared folder associated with the peer-to-peer network.

CALIFORNIA PUBLIC RECORDS ACT

CHP 180 forms contain personal information exempt from disclosure pursuant to the California Public Records Act.

State of California v. Superior Court (Flynn), 2016 Cal App. LEXIS 857 (Cal. App. 2d Dist. Oct. 13, 2016)

Facts: In April 2014, Colleen Flynn requested that the California Department of Justice (DOJ) and the California Highway Patrol (CHP) produce electronically stored data derived from CHP 180[7] forms pursuant to the California Public Records Act (CPRA).[8] After some correspondence between Flynn and the CHP, Flynn filed a petition for writ of mandate under the CPRA requesting electronically stored data derived from CHP 180 forms.

In June 2015, Judge Luis A. Lavin granted the petition for writ of mandate, ordering the State to provide Flynn with electronically stored data in electronic format on any CHP database or the DOJ’s Stolen Vehicle System database that was derived from CHP 180 forms without redaction of any information derived from the forms. In August 2015, the State filed a petition for writ of mandate, challenging Judge Lavin’s order. In September 2015, the Second District issued an alternative writ, and in October 2015, Judge Robert H. O’Brien vacated Judge Lavin’s judgment in light of the alternative writ.

In January 2016, the Second District granted the writ of mandate, concluding that the outcome was controlled by the holding of County of Los Angeles v. Superior Court (Anderson-Barker).[9] After a June 2016 hearing regarding the parties’ positions on the entry of a new judgment, Judge Mary Strobel found she was bound by the previous order of Judge Lavin, and issued a new order granting the petition for writ of mandate in part and denying it in part. Judge Strobel ordered that, to the extent the CHP database contained information other than information derived from CHP forms, such information could be redacted or excluded from the data produced to Flynn.

In July 2016, the State filed a peremptory writ of mandate, challenging the June 2016 order. In July 2016 the Second District issued an alternative writ of mandate directing the lower court to vacate its order and enter a new and different order, or show cause why a peremptory writ should not issue. The June 2016 order compelling production of the unredacted records was stayed pending determination of the merits of the petition. The lower court did not comply with the alternative writ.

Held: The Second District found the lower court erred in failing to conform its June 2016 order to the opinion in Anderson-Barker, and ordered that the lower court vacate the June 2016 order and enter a new order directing the State to produce all electronically stored data derived from the CHP 180 forms in the CHP databases, redacting the names and addresses of the legal and registered owners as well as any other information exempt from disclosure pursuant to Anderson-Barker.

In reaching its conclusion, the Court noted that, when an officer fills out a CHP 180 form when impounding or storing a vehicle, he or she retrieves the names of the registered and legal owners and addresses from either registration paperwork or a registration check of the vehicle with the DMV database. Because some personal information is derived from DMV records by a statutorily authorized agency, the information is protected from disclosure pursuant to Vehicle Code section 1808.21[10] as well as Government Code section 6254.1.[11] The Court also noted that the Driver’s Privacy Protection Act of 1994 (DPPA)[12] also restricts the ability of states to disclose drivers’ personal information, including photographs, social security numbers, driver identification numbers, names, addresses, telephone numbers, and medical or disability information, without a driver’s consent. In Anderson-Barker, the Court held that the CHP 180 forms fell squarely within the exemption from disclosure set forth in Government Code section 6254(k),[13] since disclosure of any personal information obtained from DMV records, without permission from the vehicle owner, is prohibited by federal law under the DPPA.

Since Flynn sought the same electronically stored data derived from CHP 180 forms, including the personal information exempt from disclosure under the CPRA, the Court concluded that the lower court erred in compelling the CHP to produce the unredacted records containing personal information derived from CHP 180 forms. Thus, the Court ordered the lower court to vacate the June 2016 order and to enter a new order directing the State to produce all electronically stored data derived from CHP 180 forms in the CHP databases, redacting names and addresses of the legal and registered owners as well as any other personal information exempt from disclosure pursuant to Anderson-Barker.

GOVERNMENTAL LIABILITY

Officers may create a special relationship where they promise to take care of a mentally distressed woman.

Doe v. City of Modesto, 2016 Cal. App. Unpub. LEXIS 7334 (Cal App. 5th Dist. Oct. 6, 2016)*

*Note: This case is not certified for publication and, therefore, cannot be cited as precedent in other matters. However, it is informative and educational for its discussion of how, and under what circumstances, law enforcement can create a special relationship with a member of the public.

Facts: In June 2013, City of Modesto Police Department (MPD) received a 911 call from Amanda Doe, a 26-year-old mother, indicating her belief that police were outside her home, that she was home with her four-year-old daughter, Sheila Doe, and had tried to open the door to give Sheila to the police, and that she needed five minutes and then her daughter would be outside. About forty minutes later, two MPD officers responded to the 911 call, and found Sheila wondering in the street. Sheila told the officers her mother was sick inside her home and she had been locked out. The officers placed Sheila in protective custody in their patrol car under the supervision of an explorer scout.

At Amanda’s front door, the officers found a large amount of vomit. The officers entered the home and made a welfare inquiry by calling out. Amanda responded by moaning, so the officers entered the home based on their concern for her health and safety. Once inside, they found the home in total disarray, and found Amanda standing in the bathroom area with a knife in her hand. The officers ordered Amanda to drop the knife and then called for assistance and an ambulance. Ten armed, uniformed officers responded.

A sergeant took command and directed Amanda to drop the knife. After spending some time speaking with Amanda, who refused to leave the home peacefully, the sergeant and other police officers left Amanda in her home, but retained custody of Sheila. Neither the sergeant nor the officers advised family members that MPD was leaving Amanda by herself. Although the sergeant and officers has crisis intervention training, they did not follow crisis intervention protocols and procedures when they left Amanda on her own.

Approximately one hour after MPD personnel left, Amanda was unable to escape a fire in her home, likely started by her, and she later died from acute smoke and chemical inhalation. In July 2014, Sheila filed a complaint for the wrongful death of her mother against the City of Modesto and three MPD officers. In December 2014, Sheila filed a first amended complaint. In January 2015, the defendants filed a demurrer on the grounds that the officers did not owe a duty to Sheila or Amanda and, even if there was a duty, they were immune from liability. In March 2015, the trial court issued a tentative ruling sustaining the demurrer, stating that Sheila failed to allege sufficient facts to establish a special relationship with the defendants that would create a duty of care, and that she had not indicated how she would change her complaint to properly allege the necessary facts. The court entered judgment in favor of the defendants in May 2015, and Sheila appealed the judgment and underlying order sustaining the demurrer.

Held: Sheila established an ability to amend her pleading to allege specific facts sufficient to establish a special relationship creating a duty to warn Amanda’s sister that MPD was withdrawing its assistance. The Fifth District assessed whether there was a special relationship in the context of whether Sheila had alleged the facts with sufficient particularity, or could with her proposed changes to her pleading, to overcome the demurrer.

The Court explained that, as a general rule, law enforcement officers do not owe a duty of care to protect members of the general public, and therefore they have no duty to come to the aid of another unless the officers have created a peril or a special relationship exists. The Court explained that there are two ways a special relationship can be created. First, a special relationship can be created where an officer makes a representation, whether express or implied, that is detrimentally relied upon and causes a foreseeable harm. Second, a special relationship is created where an officer engages in an affirmative act that increases the foreseeable risk of harm to the individual. Pursuant to Thompson v. Sacramento City Unified School Dist.,[14] a duty of care can arise under the special relationship doctrine where a person makes a specific threat against a specific person or otherwise presents a foreseeable danger to a readily identifiable potential victim, which the Court explained is one way to establish foreseeability of both the danger and the victim.

In Sheila’s new allegations, she alleged that Amanda’s sister, Nicole, informed an MPD officer of Amanda’s struggle with bipolar disorder, which she treated with Prozac, and then asked whether she could to see Amanda to try to talk her down. The MPD officer, she alleged, instructed Nicole not to go and assured her that MPD officers would either take Amanda to behavioral health or jail.

The Court concluded that the specific allegations were sufficient to support Sheila’s general allegation of foreseeability. It noted that Nicole’s statement that Amanda struggled with bipolar disorder and treated that disorder with Prozac supported the inference that Amanda was or might be a danger to herself, and that inference was strengthened by Nicole’s request to go talk Amanda down. The Court further noted that the inference that Amanda presented a foreseeable danger to herself was further strengthened by the officer’s statement that the police would either take Amanda to behavioral health or jail, which implied the officer foresaw that Amanda was a danger to herself and needed some kind of supervision so that she would not harm herself.

In sum, the Court found that Sheila’s allegations, as amended, were sufficient to show that (1) it was foreseeable that Amanda presented a peril to herself, (2) the MPD officer expressly represented to Nicole that the police would take Amanda to behavioral health or jail, (3) Nicole relied on the representation by refraining from going to the aid of her sister, and (4) Nicole’s reliance was detrimental, since Amanda’s death would have been prevented if Nicole had gone to her aid.

Finally, although the defendants argued nine theories of immunity under the Government Code, including discretionary acts, enforcement of laws, acts or omissions of others, institution of court proceedings, failure to provide police protection, failure to make an arrest, failure to make a mental examination, failure to diagnose mental illness, and failure to confine a person for mental illness, the Court held that the statutory immunities do not protect against liability for breaching a duty to warn a family member that a person that poses a danger to herself is being released from law enforcement custody.

For a more detailed discussion of this case, please see Client Alert Vol. 31, No. 22 authored by Martin J. Mayer and available at www.jones-mayer.com.

[1] 556 U.S. 332 (2009).

[2] “A person may not drive a motor vehicle upon a highway, unless the person then holds a valid driver’s license issued under this code, except those persons who are expressly exempted under this code.”

[3] 27 Cal. 4th 60 (2002).

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

[5] 538 F.3d 1117 (9th Cir. 2008).

[6] 595 F.3d 1045 (9th Cir. 2010).

[7] Pursuant to the CHP’s Vehicle Procedures Manual, a CHP 180 form must be completed for every vehicle that is stored or impounded. Both the officer and the tow operator must sign the form, and the tow operator is given a copy of the form, which contains information such as vehicle identification number (VIN), driver license number(s), registered owner(s) and legal owner(s) and their address(es), statutory towing authority, and other information relating to the vehicle, the reason for the tow, and release conditions, if any.

[8] Cal. Gov. Code §§ 6250 et seq.

[9] 242 Cal. App. 4th 475 (2d Dist. 2015)

[10] Prohibits disclosure of vehicle owner’s address retrieved from DMV records.

[11] Prohibits disclosure of vehicle owner’s address retrieved from DMV records.

[12] 18 U.S.C. § 2721 et seq.

[13] “Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”

[14] 107 Cal. App. 4th 1352 (3d Dist. 2003).





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