Courtesy of James R. Touchstone, Esq.


  1. Information a year old is not considered stale where child pornography is concerned and therefore may be used to establish probable cause for a search warrant.

Klugman v. Superior Court (Monterey Cnty.), 2019 Cal. App. LEXIS 875 (6th Dist. Aug. 30, 2019)

Facts: In January 2016, a warrant issued for the search of Gary Phillips Klugman’s residence and the office of his dental practice. The warrant authorized law enforcement officers to search his home and office computers and seize evidence of “sexual exploitation of a child, in violation of Penal Code section 311.3, or possession of matter depicting sexual conduct of a person under the age of 18 years, in violation of Penal Code [section] 311.11.” Among the property seized pursuant to the warrant four days later was extensive electronic evidence contained on computers, memory sticks, external hard drives, thumb drives, memory cards, cameras, cell phones, and other devices. Klugman was charged with two counts of knowingly possessing images of minors engaging in or simulating sexual conduct, in violation of Section 311.11(a).

Klugman filed a motion to quash the search warrant and suppress the seized evidence in July 2017. He based his motion on both Penal Code section 1538.5 and Penal Code section 1546.4(a), part of the Electronic Communications Privacy Act[1] (“ECPA”). The ECPA restricts government access to “electronic device information.”[2] In his challenge under Section 1538.5, Klugman asserted that the warrant lacked both particularity and probable cause in violation of the Fourth Amendment to the United States Constitution and article 1, section 13 of the California Constitution.

The trial court denied Klugman’s motion on both grounds. Klugman filed a petition for writ of mandate, prohibition, or other relief to the California Sixth District Court of Appeal. The Court of Appeal denied the petition due to untimeliness, but the California Supreme Court directed the Court of Appeal to vacate the order and to issue and order to show cause why timeliness exceptions should not apply. The Sixth District did so, and later granted Klugman’s request to go beyond the timeliness issues and address the merits of the asserted Sections 1538.5 and 1546.1 violations. The Court received supplemental briefs on the substantive issues from both parties and reviewed.

Held: The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause…” The Sixth District Court of Appeal explained that “[t]he question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding [that] a fair probability existed that a search would uncover wrongdoing.” (People v. Westerfield (2019) 6 Cal.5th 632, 659.) “The magistrate’s determination of probable cause is entitled to deferential review.” (Westerfield, 6 Cal.5th at pp. 659–660 (internal citation omitted).)

Klugman contended that probable cause consisted only of information from an employee of the company that supported and maintained Klugman’s computer systems at his residence and dental office. Klugman also described the employee’s information as “conclusory” and “stale,” based on “general, non-specific” observations of file names that could have pertained to titles two years earlier, rather than at the time the search warrant would be issued. The employee had stated to a detective (who provided a supporting affidavit for the warrant here) that the employee had seen files on both Klugman’s home and office computers in 2013 and 2014. The files had words in the titles with ages and acts indicating child pornography.

The Court explained that “[t]he question of staleness concerns whether facts supporting the warrant application establish [that] it is substantially probable the evidence sought will still be at the location at the time of the search.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 370.) When evaluating a claim of staleness, courts “do not measure the timeliness of information simply by counting the number of days that have elapsed [Citation.] Instead, we must assess the nature of the information, the nature and characteristics of the suspected criminal activity, and the likely endurance of the information.” (United States v. Morales-Aldahondo (1st Cir. 2008) 524 F.3d 115, 119.)

The Court explained that for child pornography cases, “the staleness determination is unique because it is well known that ‘images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes.’ [Citation.]” (United States v. Irving (2d Cir. 2006) 452 F.3d 110, 125.) “This proposition is not novel in either state or federal court: pedophiles, preferential child molesters, and child pornography collectors maintain their materials for significant periods of time.” (United States v. Lamb (N.D.N.Y. 1996) 945 F. Supp. 441, 460.)

Moreover, the Sixth District noted that the trial court did not rely only on the investigating officer’s interview with the employee, but considered the accounts of two people (one another employee who was Klugman’s friend) who actually opened Klugman’s files and saw images and videos of child pornography. Another employee who was the daughter of the company’s owner said she saw a folder with many files with titles indicating child pornographic material. The trial court found these reports reliable, and reinforced by the opinion of the 20-year veteran detective who provided the affidavit.

The Sixth District agreed with the trial court’s determination that that the reports based on information derived from third parties were not conclusory, were not stale, and were reliable and corroborative of the others. The Sixth District thus agreed with the trial court that the information provided was sufficient to give a reasonable person grounds to suspect that child pornography could be found on Klugman’s computers; Klugman failed to show the magistrate’s finding of probable cause was in error.

The Sixth District Court of Appeal thus concluded that the trial court did not err in determining that neither the Fourth Amendment nor the ECPA required suppression of the child pornography evidence found on Klugman’s electronic devices. Accordingly, the Sixth District denied Klugman’s petition.

  1. An officer may search a cellphone seized as inventory in preparation for a vehicle about to be towed, if the inventory search is not an excuse to rummage for evidence.

United States v. Garay, 2019 U.S. App. LEXIS 27908 (9th Cir. Sep. 17, 2019)

Facts: In March 2017, San Bernardino County deputy sheriffs attempted to stop Nahach Garay for a traffic violation, but Garay, with a passenger in the car, led them on a high-speed chase. Garay crashed his car into a ditch and tried to flee on foot before the deputy sheriffs apprehended him. A search of his person revealed thousands of dollars in cash and quantities of four different illegal drugs. He was placed under arrest. The officers had to arrange to have the car towed because Garay’s car was totaled in the ditch. In preparation for the tow, they searched the contents of the car and found two loaded rifles, ammunition, and two cell phones. The passenger claimed one of the cell phones. The officers filled out a Vehicle Report on which they listed firearms as property, but they did not list other property in the “remarks” section. The officers booked the rifles, ammunition, and cell phones as evidence.

To search the contents of the cell phones, state law-enforcement officers obtained a warrant on the strength of an officer’s affidavit describing the circumstances leading up to the discovery of the phones. These circumstances included the drugs and cash found on Garay’s person and the affiant’s knowledge, based on training and experience, that individuals who possess firearms take pictures of them and communicate via text messages to further their criminal activity. When the case was referred for federal prosecution, a second, federal warrant was issued on the basis of similar information as well as on the “collective experiences” of law enforcement agents that felons prohibited from possessing guns use mobile phones to coordinate buying and selling guns.

The phone contained photographs that tied Garay to the firearm that was recovered from the car. The District Court determined that the phone was lawfully seized in an inventory search of the car and that the warrants authorizing the search of the phone’s contents were supported by probable cause. Garay was convicted under 18 U.S.C. section 922(g)(1) as a felon in possession of a firearm. Garay appealed, challenging the denial of his motion to suppress evidence found as a result of the search of his cell phone.

Held: The government’s threshold contention on appeal was that Garay lacked standing to challenge the search of the phone because he had abandoned any reasonable expectation of privacy in its contents when he fled from the car. The Ninth Circuit Court of Appeals explained that the United States Supreme Court recently clarified in Byrd v. United States[3] that Fourth Amendment standing is “not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim.”[4] Because the Ninth Circuit concluded here that the search and seizure of Garay’s cell phone were both reasonable under the Fourth Amendment, the Court reasoned that it did not need to determine whether Garay abandoned all reasonable expectation of privacy in the cell phone. The Court then discussed the merits of the case.

Garay argued that the warrantless seizure of the phone itself was unreasonable. The Court explained that before towing or impounding a vehicle, officers may seize and inventory the contents of that vehicle in order to avoid liability for missing items. See South Dakota v. Opperman, 428 U.S. 364, 369 (1976). However, “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence”[5] to be consistent with the Fourth Amendment. Garay argued that the officers used their authority to inventory the car’s contents here to unlawfully rummage for evidence, pointing to the absence of any inventory sheet listing the property found inside the car (a list required under the inventory policy of the sheriff’s department).

The Court rejected Garay’s contention that the officers were rummaging for evidence. The Court explained that the car’s contents had to be removed and safeguarded before the car was towed away, which was “the essence of an inventory search.” The Court considered the site to be effectively a crime scene, and thus the items in the car were appropriately treated as evidence. Moreover, the searching officer complied with the department’s inventory-search policy in material respects. The Court explained that the fact that the officer did not complete the inventory list that ordinarily would be completed as part of a department inventory search was not, on its own, a material deviation from policy. The Ninth Circuit cited several cases from other circuits that expressly recognized that the failure to complete an inventory form does not invalidate an inventory search. Moreover, the Ninth Circuit[6] and several other circuits[7] had upheld inventory searches despite other comparable administrative errors. Accordingly, the Ninth Circuit concluded that the District Court did not err in concluding that Garay’s cell phone was lawfully seized as part of a valid inventory search.

Garay also argued that the affidavits supporting the search of the contents of his phone were inadequate. The Ninth Circuit concluded that the District Court correctly determined that probable cause supported the two warrants issued to search the Garay’s cell phone. The Ninth Circuit explained that probable cause supported the warrants issued to search the phone because the affiants could state conclusions based on training and experience without having to detail that experience, and because there was a sufficient factual basis for both magistrate judges to independently conclude that evidence might be found on the phone. The Ninth Circuit accordingly affirmed.

  1. Birchfield v. North Dakota did not prohibit finding implied consent because defendant could choose from three tests, and was not forced to choose between a blood test or criminal penalties.

People v. Nzolameso, 2019 Cal. App. LEXIS 878 (2nd. Dist. Sep. 17, 2019)

Facts: In June 2017, a crowd of people were socializing in a parking lot outside of a club one night when Julio Nzolameso drove his car into the crowd, hitting several people. Nzolameso exited the lot turning into heavy traffic, and crashed into a parked car. Nzolameso was immediately detained by Los Angeles Police Department Officers Ernest Fields and Samuel Kim, who transported Nzolameso to a hospital in case Nzolameso was injured. Officer Fields conducted field sobriety tests at the hospital, which Nzolameso failed. Nzolameso was arrested.

Officer Fields then placed Nzolameso under arrest and advised him of California’s implied consent law, California Vehicle Code 23612. The arresting officers informed Nzolameso that he was required to submit to either blood, urine, or breath testing and that refusal to submit to any testing at all would result in civil and criminal penalties. Nzolameso opted for the blood test, which revealed a blood-alcohol level of 0.05 percent above the legal limit. The People’s criminalist estimated Nzolameso’s blood alcohol concentration (“BAC”) was between 0.05 and 0.16 at the time of the collision. Nzolameso also asked for a urine test. Nzolameso never withdraw his consent to either test.

Nzolameso was charged with several DUI and other counts. He moved to suppress the blood test, contending that the police were required to obtain a warrant to draw his blood. The trial court denied the motion, finding that under the totality of the circumstances, Nzolameso freely and voluntarily consented to the blood draw. Nzolameso pled nolo contendere to DUI with a 0.08 percent blood alcohol content causing great bodily injury within 10 years of two other DUI offenses, admitted he caused great bodily injury to two victims, and admitted he suffered two prior DUI convictions. The trial court sentenced Nzolameso to 10 years in prison. He appealed.

Held: Relying on the United States Supreme Court’s decision in Birchfield v. North Dakota (2016) 136 S.Ct. 2160, Nzolameso argued that the trial court erred in denying his motion to suppress the blood test evidence because the Fourth Amendment required law enforcement to obtain a warrant before taking a sample of his blood. Nzolameso argued that under California’s former implied consent law, which was amended after his conviction, he did not freely and voluntarily consent to the blood draw because he faced criminal penalties if he refused.

The California Second District Court of Appeal explained that Birchfield held that a breath test comes within the categorical search-incident-to-arrest exception to the warrant requirement, but blood tests require a warrant because “[b]lood tests are significantly more intrusive”[8] than the less invasive alternative of a breath test that was available to the Birchfield defendant. However, a defendant’s free and voluntary consent to a blood draw constitutes an exception to the Fourth Amendment search warrant requirement. (People v. Elder (2017) 11 Cal.App.5th 123, 131.)

The Second District explained that Birchfield prohibits a court from finding implied consent where an arrestee’s only choice is to consent to a warrantless blood test or be prosecuted for refusing to do so. Here, however, Nzolameso was not required to take the blood test or face criminal prosecution; he was required only to choose between three alternative tests. Only refusing all tests would have exposed him to criminal penalties under the law. Just because under Birchfield, “the state cannot compel a warrantless blood test does not mean that it cannot offer one as an alternative to the breath test that it clearly can compel.”[9]

Moreover, the trial court held a hearing on the issue of actual consent and found Nzolameso’s consent to the blood draw to be voluntary. The Second District found substantial evidence supported the trial court’s findings. This included both officers’ testimony about the circumstances in which Nzolameso gave his consent to the blood draw, and no testimony from Nzolameso that he only gave actual consent because of the threat of criminal prosecution.

The Second District Court of Appeal thus disagreed with Nzolameso that Birchfield required a finding that his consent to the blood test was invalidated. The Court agreed with the trial court that Nzolameso’s consent was freely and voluntarily given, and accordingly affirmed.

  1. Local agent’s dependency investigator, to whom defendant stated he committed murder and threatened the victim, was not a peace officer or law enforcement agent, so Miranda did not apply.

People v. Keo, 2019 Cal. App. LEXIS 908 (2nd Dist. Sep. 23, 2019)

Facts: Ngounsay Keo and his girlfriend Karina Duch had been in a relationship for over 20 years. Duch was the mother of Keo’s two sons, 15-year-old S.L. and eight-year-old S.K., and they all lived together in a one-bedroom apartment in early 2016 when Keo and Duch’s relationship declined. After a drunk Keo slapped Duch and threatened to kill them, Duch filed a criminal report and, a few days later, took the two children and moved out. Duch obtained a temporary restraining order, which a sheriff’s deputy personally served on Keo in early April.

Despite the restraining order, Duch and S.K. visited Keo in August 2016 to go together to watch a parade. A few days later, Duch and S.K went to their former apartment to pick up a doctor’s note. Keo was there. He told S.K. to go next door to play at a friend’s apartment. While next door, S.K. heard Duch scream loudly and yell “stop.” S.K. twice went to Keo’s apartment to inquire about Duch, but each time Keo opened the door slightly and said that Duch was sleeping. When S.K. returned a third time sometime later, the door was unlocked and he entered. He found Keo lying on the floor in the living room with his internal organs hanging out of his abdomen with blood flowing out, and a butcher’s knife by his side. After the mother of S.K.’s friend called 911, an officer found Duch dead in the bedroom with a large laceration in her stomach with her internal organs exposed. An autopsy revealed several stab wounds to the abdomen, upper chest and lungs, right hip, and arms. Keo, however, was alive and transported to a hospital for medical care.

While Keo was recovering in the medical unit of the jail, he was interviewed by Julia Han, who worked as a dependency investigator for the Los Angeles County Department of Children and Family Services (“Department”). Keo was by himself without an attorney present. Keo admitted that he killed Duch because she tried to take the children away from him, that he tried to kill himself, and that he had previously threatened Duch that all of them would die if she took the sons away. Although Han did not inform the prosecutor or the police about what Keo said to her or that she had interviewed Keo, an attorney representing the Department learned of Keo’s statements at a dependency hearing and informed the prosecutor.

The trial court denied Keo’s pretrial motion to suppress Han’s testimony. Han testified to the statements at trial. A jury convicted Keo of second degree murder and making a criminal threat, and found true the special allegation he used a deadly or dangerous weapon, a knife, in the commission of the murder. Keo was sentenced to an aggregate sentence of 19 years to life. Keo appealed.

Held: On appeal, Keo argued that the admission of the statements violated his Fifth and Sixth Amendment rights because Han failed to provide a warning under Miranda v. Arizona (1966) 384 U.S. 436, and interviewed him without his attorney present.

The California Second District Court of Appeal noted that “California courts have limited [Miranda’s] requirements … to ‘law enforcement officials,’ their agents, and agents of the court, while the suspect is in official custody.” (In re Deborah C. (1981) 30 Cal.3d 125, 130.) Keo contended that a dependence investigator was a “peace officer” within the meaning of Penal Code section 830.3(h) and was therefore a law enforcement officer subject to Miranda requirements. The Court rejected this view because Section 830.3(h)’s definition of peace officers only included investigators for the State Department of Social Services, not dependency investigators employed by a local agency such as the Department here.

The Court next considered whether a dependency investigator acts as an agent of law enforcement, which would require such an agent to provide Miranda warnings. The Court explained that Han’s function as a dependency investigator was to determine the best interests of S.L. and S.K., and whether they should be returned to Keo’s custody after his release. “Unlike criminal trials, the primary purpose of dependency hearings is to protect the child, not prosecute the parents.” (In re Corey A. (1991) 227 Cal.App.3d 339, 346.)

The Court observed that “[a]lthough no published California cases had addressed whether a social worker in a dependency investigation acts as a law enforcement officer for Miranda purposes, courts in other states have consistently concluded a social worker conducting a dependency investigation is not an agent of law enforcement for purposes of Miranda unless he or she acts under the direction or control of law enforcement.” For this inquiry, the California Second District agreed with the Louisiana Supreme Court in State v. Bernard that “[t]he most important factors are … whether the investigator discussed the case with police prior to the interview, whether the interview was conducted at the police’s request, and whether the primary purpose of the investigator’s visit was to elicit a confession while in cahoots with law enforcement.” (State v. Bernard (La. 2010) 31 So.3d 1025, 1035, citation omitted.)

The Second District observed that here Han did not discuss the facts of the case with the police or prosecutor prior to interviewing Keo, but instead merely called the prosecutor to find out the charge brought against Keo and the status of the criminal case. Han did not inform the police or the prosecutor that she intended to interview Keo. And although the Department’s attorney later advised the prosecutor that Keo had made statements to Han, the prosecutor did not get a copy of Keo’s statements until a year after the interview, in response to the prosecutor’s subpoena requesting Han’s report. The Court therefore concluded that Han was not acting as law enforcement or an agent of law enforcement for purposes of Miranda, and so Keo’s Fifth Amendment rights were not violated.

Han also had claimed that his rights under the Sixth Amendment to the United States Constitution were violated since Han, as a “state agent,” elicited incriminating statements without an attorney for Keo present. Because the Court concluded in its earlier Fifth Amendment Miranda analysis that Han was not an agent of law enforcement, there was no violation of the Sixth Amendment rule against eliciting incriminating statements from an accused without counsel. Rejecting Keo’s other claims also, the Second District accordingly affirmed.

  1. Miranda warnings are not required when suspects give voluntary statements to a person they do not know is a police officer and therefore Fifth Amendment rights are not violated.

People v. Rodriguez, 2019 Cal. App. LEXIS 907 (2nd Dist. Sep. 23, 2019)

Facts: Giovanny Rodriguez was in a gang. He shot and wounded a man. Eight months later, Rodriguez was in jail on an unrelated matter. Police put an informant who dressed and acted like an inmate in Rodriguez’s holding cell. Rodriguez was not provided Miranda advisements. (Miranda v. Arizona (1966) 384 U.S. 436, 444.) The informant engaged Rodriguez in conversation. Rodriguez told the informant that he and his “crime partner” “did a shooting … [a]ttempted murder.” After a detective entered the cell to inform Rodriguez that he would be charged with attempted murder (without revealing anything about the informant), Rodriguez and the informant talked more about the shooting for an hour and 40 minutes. Police secretly recorded their entire interaction.

Police then took Rodriguez out of the holding cell. The detective Mirandized and then interrogated Rodriguez. Police then put Rodriguez back into the holding cell with the informant. Rodriguez talked some more with the informant and discussing the details of the shooting over a period of 20 minutes.

The trial court denied Rodriguez’s motion to exclude his conversations with the undercover informant. The prosecution played the recording for the jury. The jury convicted Rodriguez of attempted murder and other crimes, and the trial court sentenced him to 45 years four months to life, and imposed fines. Rodriguez appealed.

Held: Rodriguez argued the trial court’s admission of his jailhouse confession violated his Fifth Amendment rights because police failed to properly Mirandize him prior to his confession. He also claimed his due process rights were violated because police coerced him to confess.

The California Second District Court of Appeal explained that Miranda held that, under the Fifth Amendment, courts may admit statements made by suspects during a custodial interrogation only if police first warn suspects of their rights. However, Miranda warnings are not required when suspects give voluntary statements to a person they do not know is a police officer. (Illinois v. Perkins (1990) 496 U.S. 292, 294.) The Court concluded that no Miranda warning was required because Rodriguez did not know he was speaking to the police when he talked to the undercover informant.

Rodriguez claimed he “felt coerced” because the informant posed as “an older, well-connected gang member” and he was confined in the same cell as the informant for about two hours. However, the Court explained that Miranda addressed concerns that a “police-dominated atmosphere” generates “inherently compelling pressures” that “undermine the individual’s will to resist” questioning. (Miranda, supra, 384 U.S. at pp. 445, 467.) Rodriguez was not subject to such an environment with the informant, but instead spoke freely and at his own risk.

The Court also concluded that the government did not coerce Rodriguez into confessing involuntarily. Rodriguez claimed the government coerced him into confessing because he was placed in a locked cell with an older gang member to whom Rodriguez was required to “show respect to, gain respect from, and gain protection from.” Rodriguez was 26 years old; the undercover informant claimed to be 35. The Court found no support for this contention because no evidence showed this nine-year age gap to be meaningful to gang members. Moreover, the Court of Appeal observed that the trial court said that it had the impression that Rodriguez and the informant were having “a good time in that cell talking, laughing, discussing things. There was not an iota of evidence to suggest Mr. Rodriguez was pressured.” Rejecting Rodriguez’s other claims as well, the Second District Court of Appeal consequently affirmed.


Plaintiff in Fair Employment and Housing case may present comparative evidence if plaintiff and comparator are similarly situated in all relevant aspects and comparator was treated more favorably.

Gupta v. Trs. of Cal. State Univ., 2019 Cal. App. LEXIS 929 (1st Dist. Sep. 26, 2019)

Facts: In 2006, the Trustees of the California State University for San Francisco State University (“SFSU”) hired Dr. Rashmi Gupta as a “tenure track assistant professor” in the School of Social Work, College of Health and Social Sciences. SFSU conducts an annual review and decides whether to retain the professor for another year. An assistant professor is typically hired to a six-year term and SFSU decides whether to promote the professor to associate professor and award lifetime tenure during the sixth year. SFSU decided each year to keep her as an assistant professor. In Gupta’s third-year review, she received positive reviews from all three faculty members who conducted teaching performance evaluations.

In November 2009, Gupta and several other women of color in the School of Social Work wrote a letter to SFSU administrators to discuss “faculty concerns in the School of Social Work” relating to “abus[e] of power and authority, excessive micromanagement, bullying, and the creation of a hostile work environment.” Two months later, Gupta received a fourth-year review that criticized her performance and other aspects, despite the fact that her evaluative scores were significantly better than the department mean and she had published enough articles to meet tenure requirements. Gupta sent emails to a colleague complaining of a hostile work environment toward people of color. At a March 2010 meeting between Dr. Don Taylor, the Dean of the College of Health and Social Sciences, and the School of Social Work faculty, Taylor was visibly angry at Gupta for the emails to her colleagues, saying, “I’m going to get even with you.”

Taylor recommended denial of Gupta’s early tenure during Gupta’s fifth year at SFSU, despite Gupta’s support from the departmental and campus wide tenure committees and the interim director of the School of Social Work, and her submission of peer teaching evaluations and references from students and faculty members at SFSU and at other institutions.

Gupta came up for regular tenure during the 2011–2012 academic year. Students effusively praised her teaching, and she received universal support from her colleagues and departmental and campus wide tenure committees. Her scholarship was described as “most impressive” and “remarkable” by the departmental tenure committee, and she was awarded a Fulbright research award in 2012. The Interim Director of the School of Social Work also “enthusiastically supported” granting Gupta tenure and promotion, despite Taylor’s anger at the Interim Director for doing so. Taylor again recommended against Gupta’s tenure. SFSU denied Gupta tenure and terminated her employment in June 2014.

The Department of Fair Employment and Housing issued Gupta a right to sue letter. Gupta then filed suit alleging SFSU discriminated and retaliated against her in denying her tenure and terminating her employment. A jury found against Gupta for the discrimination cause of action but for her on the retaliation cause of action, awarding her $378,461 in damages. The trial court entered judgment in favor of Gupta in the amount of $378,461 plus attorney fees and costs of $587,160.75. SFSU appealed.

Held: The California First District Court of Appeal explained that plaintiffs in Fair Employment and Housing Act (“FEHA”) cases can prove their cases by presenting either direct evidence, such as statements or admissions, or circumstantial evidence, such as comparative or statistical evidence. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816.) “To be probative,” “comparative data … must be directed at showing disparate treatment between employees [who] are ‘similarly situated’ to the plaintiff in all relevant respects. [Citations.]” (Iwekaogwu, supra, 75 Cal.App.4th at p. 817.)

Gupta presented evidence that she and another professor who did receive tenure were similarly situated in all relevant respects, but the other professor was treated more favorably. The year after SFSU denied Gupta tenure, SFSU granted tenure to Dr. J.H., a professor in the School of Social Work who had not previously filed a complaint against SFSU. Gupta’s evaluative scores were better than those of J.H. and Gupta had more than double the minimum requirements for publication, while J.H. had not met the minimum publication requirements.

SFSU did not contest that J.H. and Gupta were similarly situated in all relevant aspects. SFSU instead argued that the trial court should have required Gupta to show she was clearly superior to J.H. before allowing her to present evidence regarding J.H.. The Court rejected SFSU’s cited cases as inapposite, and concluded the trial court had not erred in allowing Gupta to present evidence relating to comparator J.H. without showing her qualifications were clearly superior to J.H.’s qualifications. The proper standard was that of Iwekaogwu; if the comparator had been similarly situated to the claimant in all relevant respects and had been treated more favorably, that sufficed as comparative data in FEHA cases. The First District affirmed.


Officers alleged to have stolen personal property during execution of warrant-based search and seizure entitled to qualified immunity due to the lack of any clearly established law on the issue.

Jessop v. City of Fresno, 2019 U.S. App. LEXIS 26674 (9th Cir. Sep. 4, 2019)

Facts: As part of an investigation into illegal gambling machines in the Fresno, California area, three City of Fresno and Fresno police officers (the “officers”) executed a search warrant at three properties belonging to Micah Jessop and Brittan Ashjian (“Appellants”). The warrant, signed by a Fresno County Superior Court judge, authorized the “seiz[ure] [of] all monies, negotiable instruments, securities, or things of value furnished or intended to be furnished by any person in connection to illegal gambling or money laundering that may be found on the premises . . . [and] [m]onies and records of said monies derived from the sale and or control of said machines.” If the officers found the property listed, they were “to retain it in [their] custody, subject to the order of the court as provided by law.”

After the search, the officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from the properties. Appellants alleged that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants claimed that the officers stole the difference between the amount they actually seized from the properties and the amount the officers listed on the inventory sheet.

Appellants brought suit in the Eastern District of California alleging, among other things, claims against the officers pursuant to 42 U.S.C. section 1983 for Fourth and Fourteenth Amendment violations. The officers moved for summary judgment arguing they were entitled to qualified immunity. The District Court granted the motion and dismissed all of Appellants’ claims.

Held: The Ninth Circuit Court of Appeals held that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. Therefore, the Court concluded, the officers were entitled to qualified immunity. The Court accordingly affirmed.

The Court observed that for an officer to be entitled to qualified immunity, the Court must consider “(1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014). The Ninth Circuit explained that the United States Supreme Court has instructed that courts may determine which prong of qualified immunity they should analyze first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Moreover, addressing the second prong before the first is considered especially appropriate where “a court will rather quickly and easily decide that there was no violation of clearly established law.” Id. at 239.

The Ninth Circuit explained that a defendant violates an individual’s clearly established rights only when “‘the state of the law’ at the time of an incident provided ‘fair warning’” to the defendant that his or her conduct was unconstitutional. Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

On the Fourth Amendment claim, Appellants argued that the officers’ alleged theft was an unreasonable seizure under the Fourth Amendment. The officers contended that because they seized Appellants’ assets pursuant to a valid warrant, they did not violate the Fourth Amendment.

The Ninth Circuit said that it had never addressed whether the theft of property covered by the terms of a valid search warrant, and seized pursuant to that warrant, violates the Fourth Amendment. The Court explained that although its decision in Brewster v. Beck, 859 F.3d 1194 (9th Cir. 2017) was instructive on the question, Brewster’s facts differed in legally significant ways from those here. Brewster involved the government’s impoundment of a vehicle, not an allegation of property theft. And the seizure in Brewster was pursuant to an exception to the warrant requirement, whereas in the case here the officers seized property pursuant to a warrant that authorized the seizure of the items allegedly stolen. Moreover, the Court noted that here the officers seized Appellants’ property in 2013, before Brewster was decided in 2017.

The Ninth Circuit thus held that although the Fresno officers should have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment specifically.[10]

The Court explained that Appellants’ Fourteenth Amendment due process claim “suffer[ed] the same fate” because the Court had not previously held that police officers violate the substantive due process clause of the Fourteenth Amendment when they steal property seized pursuant to a warrant. Because the Fresno officers here could not have known that their actions violated the Fourteenth Amendment’s substantive due process clause, the Court concluded the officers were entitled to qualified immunity against Appellants’ Fourteenth Amendment claim.


Sixth District holds that SB 1391 is constitutional because it is consistent with and furthers the intent of Proposition 57.

People v. Superior Court (S.L.), 2019 Cal. App. LEXIS 904 (6th Dist. Sep. 20, 2019)

Facts: In 2016, California voters approved Proposition 57, which required prosecutors charging a minor aged 14 or older at the time of the offense to seek a juvenile court’s approval to transfer the minor to adult criminal court. In 2018, the Legislature enacted Senate Bill No. 1391 (“SB 1391”) which became effective January 1, 2019. SB 1391 prohibits the transfer of 14- and 15-year-old minors to criminal court in most cases. Section 3 of SB 1391 declared that it amended Proposition 57 and “is consistent with and furthers the intent of Proposition 57.”

S.L. was 15 years old at the time of an alleged murder. The prosecution charged S.L. with one count of murder,[11] and three counts of attempted murder.[12] In February 2018, the prosecution filed a juvenile wardship petition under Welfare and Institutions Code section 602 alleging the four counts. As to the murder count, the petition alleged that S.L. personally and intentionally discharged a firearm in the commission of the offense.

In October 2018, the prosecution filed a brief challenging the constitutionality of SB 1391 on the ground that it impermissibly amended Proposition 57 by eliminating a court’s ability to transfer jurisdiction over a 15-year-old charged with murder to adult criminal court. S.L. filed an opposing brief, and the prosecution replied. In December 2018, the trial court ruled that SB 1391 is constitutional “and that it does impact the litigation in this case.” The court then issued an amended decision in January 2019, shortly after SB 1391 took effect. In a written opinion, the trial court ruled that SB 1391 did not impermissibly amend Proposition 57 and was therefore constitutional. The juvenile court declined to hold a transfer hearing based on SB 1391. The trial court also stayed the ruling as to the murder count to allow the prosecution to petition for a writ.

On January 31, 2019, the Santa Clara County District Attorney petitioned the California Sixth District Court of Appeal for a writ of mandate requiring the juvenile court to conduct a hearing on whether minor S.L. should be transferred to criminal court.

Held: The District Attorney contended in the petition for writ that SB 1391 unconstitutionally amended Proposition 57 by revoking prosecutors’ ability to move for transfer of minors who are 14 and 15 years of age to adult criminal court.

The Sixth District Court explained that a reviewing court shall uphold the validity of the amendment to a proposition if, by any reasonable construction, it can be said that the statute furthers the purposes of the proposition. (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1256.) Proposition 57 expressly allowed for amendments by the Legislature provided “such amendments are consistent with and further the intent” of the proposition.[13] The Sixth District observed that several other District Courts[14] had upheld the constitutionality of SB 1391 and rejected the contention that SB 1391 is inconsistent with and does not further the intent of Proposition 57.

Proposition 57 set forth the following purposes: “1. Protect and enhance public safety. [¶] 2. Save money by reducing wasteful spending on prisons. [¶] 3. Prevent federal courts from indiscriminately releasing prisoners. [¶] 4. Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles. [¶] 5. Require a judge, not a prosecutor, to decide whether juveniles should be tried in adult court.”

The Court noted that only two of the stated purposes—the fourth and the fifth—specifically addressed the treatment of juvenile offenders. As to the fourth purpose, the Sixth District found that SB 1391 clearly emphasizes the rehabilitation of juveniles, by “ensuring that almost all who commit crimes at the age of 14 or 15 will be processed through the juvenile system.” (Alexander C., supra, 34 Cal.App.5th at p. 1000.) The Court explained that, as to the fifth purpose, while SB 1391 narrows the class of minors subject to transfer through judicial review, the amendment “in no way detracts from Proposition 57’s stated intent that, where a transfer decision must be made, a judge rather than a prosecutor must make the decision.” (Id. at p. 1001.)

The Court also found that SB 1391 is consistent with the first purpose of public safety because Proposition 57 was supported with the argument that minors who remain under juvenile court supervision are less likely to commit new crimes. (K.L., supra, 36 Cal.App.5th at p. 541.) The Court reasoned that it followed that by keeping minors who are 14- and 15-years of age under juvenile court supervision, SB 1391 is consistent with the intent of the initiative for enhancing public safety. Moreover, because with SB 1391 juveniles would no longer spend any time in prison or be supervised by state parole agents following their release, the Court reasoned that SB 1391 is likewise likely to foster the second Proposition 57 purpose of reducing wasteful prison spending by keeping juvenile offenders out of prison. Finally, as to the third purpose of preventing federal courts from indiscriminately releasing prisoners, the Court explained that Proposition 57 was designed to relieve prison overcrowding and thereby preempt a federal court from releasing prisoners on that ground. The Court thus found SB 1391 would thus promote the third purpose of by reducing the number of juvenile offenders who would eventually be imprisoned.

The Court thus concluded that the overall intent of Proposition 57 is in accord with SB 1391, observing that “the intent of the electorate in approving Proposition 57 was to broaden the number of minors who could potentially stay within the juvenile justice system, with its primary emphasis on rehabilitation rather than punishment.” (People v. Vela (2018) 21 Cal.App.5th 1099, 1107.) Accordingly, the Sixth District Court of Appeal held that SB 1391 furthered the intent of Proposition 57 and denied the District Attorney’s petition.

[1] Penal Code section 1546, et seq.

[2] Penal Code section 1546.1(a)(3).

[3] 138 S. Ct. 1518 (2018).

[4] 138 S. Ct. at 1530.

[5] Florida v. Wells, 495 U.S. 1, 4 (1990).

[6] See, e.g., United States v. Penn, where an inventory search was held to be lawful even though an officer may have allowed passenger to remove personal property from the car before the search, which was “contrary” to “police and city policy” 233 F.3d 1111, 1115-17 (9th Cir. 2000).

[7] See, e.g., United States v. Rowland 341 F.3d 774, 780 (8th Cir. 2003): “There must be something else; something to suggest the police raised ‘the inventory-search banner in an after-the-fact attempt to justify’ a simple investigatory search for incriminating evidence.” (quoting United States v. Marshall, 986 F.2d 1171, 1175 (8th Cir. 1993)).

[8] Id. at p. 2184.

[9] People v. Gutierrez (2018) 27 Cal.App.5th 1155, 1161. (First District)

[10] The Ninth Circuit added that the Fourth Circuit’s unpublished decision in Mom’s Inc. v. Willman, 109 F. App’x 629, 636-37 (4th Cir. 2004) —the only case law at the time of the incident holding that the theft of property seized pursuant to a warrant violates the Fourth Amendment—did not put the “constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

[11] Penal Code section 187.

[12] The attempted murder counts are not at issue in this case.

[13] Ballot Pamp., Gen. Elec. (Nov. 8, 2016), text of Prop. 57, section 5, p. 145.

[14] See People v. Superior Court (Alexander C.), 34 Cal.App.5th 994 (1st Dist. 2019); People v. Superior Court (K.L.), 36 Cal.App.5th 529 (3rd Dist. 2019); People v. Superior Court (T.D.), 38 Cal.App.5th 360 (5th Dist. 2019); and People v. Superior Court (I.R.), 38 Cal.App.5th 383 (5th Dist. 2019). However, note the Second District quite recently decided differently in O.G. v. Superior Court, 2019 Cal. App. LEXIS 941 (2nd Dist. Sep. 30, 2019).