CPOA Case Summaries – September 2021

Courtesy of James R. Touchstone, Esq.





A. Plaintiffs were likely to succeed on their claim that the destruction of bulky items stored in a public area violated the Fourth Amendment’s protection against unreasonable seizures.


Garcia v. City of L.A., 2021 U.S. App. LEXIS 26508 (9th Cir. Sep. 2, 2021)


Facts: Section 56.11 of the City of Los Angeles municipal code (the “ordinance”) strictly limits the storage of personal property in public areas. This provision is part of the City’s response to the homelessness crisis. Under subsection (3)(i) of the ordinance (the “Bulky Items Provision”), the City, without notice, may remove and may discard any “Bulky Items” (generally any item too large to fit into a 60-gallon container) stored in a public area, unless the Bulky Item is designed to be used as a shelter. Homeless persons who had their personal property destroyed by the City filed an action contending, among other things, that the Bulky Items Provision, on its face, violated the Fourth Amendment’s protection against unreasonable seizures. Three Plaintiffs who had been specifically injured by the destruction of Bulky Items moved to preliminarily enjoin the City from enforcing the Bulky Items Provision.


The District Court granted the preliminary injunction, holding that Plaintiffs were likely to succeed on their Fourth Amendment claim. The District Court reasoned that the Bulky Items Provision was likely unconstitutional under Ninth Circuit Court of Appeals precedents holding that a warrant or a recognized exception to the warrant requirement must accompany a seizure for it to be reasonable. The City appealed.


Held: The Ninth Circuit Court of Appeals agreed with the District Court that Plaintiffs were likely to succeed on their claim that the Bulky Items Provision violated the Fourth Amendment’s protection against unreasonable seizures. The Court of Appeals explained that the Fourth Amendment protects individuals from unreasonable government seizures of their property, even when that property is stored in public areas. Recchia v. City of L.A. Dep’t of Animal Servs., 889 F.3d 553, 558 (9th Cir. 2018). The destruction of property has long been recognized as a seizure. United States v. Jacobsen, 466 U.S. 109, 124-25 (1984).


In Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012), the Ninth Circuit had upheld a preliminary injunction that prohibited Los Angeles from summarily destroying homeless individuals’ publicly stored personal property. In the case here, the Court saw no meaningful distinction between the destruction of property enjoined in Lavan and the destruction of property enjoined here. The fact that Plaintiffs’ items were larger than sixty gallons did not reduce their possessory interests in those items. The Court noted that the property that the City impermissibly destroyed in Lavan included large objects like the Bulky Items at issue here, such as carts. The Ninth Circuit concluded that Plaintiffs had therefore demonstrated a likelihood of success on the merits of their claim that the Bulky Items Provision violated the Fourth Amendment on its face. Finding in favor of Plaintiffs on other matters, the Court accordingly affirmed.


B. Viewing attachments forwarded by Google’s automated child pornography detection system was an unlawful search that exceeded the private search exception.


United States v. Wilson, 2021 U.S. App. LEXIS 28569 (9th Cir. Sep. 21, 2021)


Facts: In June 2015, Google, using its propriety technology, became aware that defendant Luke Wilson had attached to emails in his email account—which may or may not have been sent—four files that included apparent child pornography. In compliance with its reporting obligations, Google automatically generated and sent an electronic report which included Wilson’s four email attachments to the National Center for Missing and Exploited Children (“NCMEC”). No one at Google had opened or viewed the defendant’s email attachments; its report was based on an automated assessment that the images the defendant uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent the defendant’s email attachments to the San Diego Internet Crimes Against Children Task Force (“ICAC”), where San Diego ICAC Agent Thompson ultimately viewed the email attachments without a warrant. Agent Thompson then applied for warrants to search both the defendant’s email account and his home, detailing descriptions of each of these attachment’s images in the application. However, Agent Thompson did not provide any detail about how Google had automatically identified Wilson’s images as apparent child pornography. After obtaining a search warrant for Wilson’s email account, the agent discovered many email exchanges involving images and video of alleged child pornography and in which Wilson offered to pay for the creation of child pornography. After obtaining and executing a search warrant for Wilson’s residence, thousands of child pornography images – including the four images reported by Google – were found on a thumb drive.


Wilson moved to suppress all evidence seized from his email account and residence, arguing that Agent Thompson’s viewing of his email attachments without a warrant was an unlawful search under the Fourth Amendment. The District Court denied the motion. Wilson was convicted of possession and distribution of child pornography.


Held: The Ninth Circuit Court of Appeals explained that the private search exception to the Fourth Amendment’s warrant requirement concerns circumstances in which a private party’s intrusions would have constituted a search had the government conducted it and the material discovered by the private party then comes into the government’s possession. Invoking the precept that when private parties provide evidence to the government on their own accord, it is not incumbent on the police to avert their eyes, the Supreme Court formalized the private search doctrine in Walter v. United States, 447 U.S. 649 (1980), and United States v. Jacobsen, 466 U.S. 109 (1984).


The Ninth Circuit held that the government did not meet its burden to prove that the officer’s warrantless search was justified by the private search doctrine. The Court declared that both as to the information the government obtained and the additional privacy interests implicated, the government’s actions here exceeded the limits of the private search exception as delineated in Walter and Jacobsen and their progeny. First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute the defendant. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilson’s email attachments even though no Google employee—or other person—had done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government had not established that what a Google employee previously viewed were exact duplicates of Wilson’s images. And, even if they were duplicates, such viewing of others’ digital communications would not have violated Wilson’s expectation of privacy in his images, as Fourth Amendment rights are personal.


The Ninth Circuit Court of Appeals thus concluded that Agent Thompson violated Wilson’s Fourth Amendment right to be free from unreasonable searches when he examined Wilson’s email attachments without a warrant. The Circuit Court vacated Wilson’s conviction, reversed the District Court’s denial of the motion to suppress, and remanded for further proceedings.


C. Because plaintiff necessarily admitted to the lawfulness of an officer’s actions in his guilty plea, his excessive force claim was barred.


Sanders v. City of Pittsburg, 2021 U.S. App. LEXIS 28822 (9th Cir. Sep. 23, 2021)


Facts: In 2017, Morgan Sanders was spotted in a stolen car, and led police on a 25-mile speeding car chase until police blocked the car, Sanders fled on foot. Sanders was eventually tackled by several officers in a gully. In the ensuing scuffle, while Sanders continued to struggle, Pittsburg Police Officer Thomas Bryan ordered the K-9 to bite Sanders’s right calf. After the bite, the officers successfully handcuffed and arrested Sanders. Sanders was charged with, among other counts, misdemeanor resisting arrest under Penal Code section 148(a)(1). Sanders pleaded no contest to all the charges against him, including misdemeanor resisting arrest under Penal Code section 148(a)(1). At the plea hearing, Sanders stipulated that the factual basis for his plea was “based on the preliminary hearing transcript,” which included Officer Bryan’s testimony about Sanders’s hinderance of officers trying to arrest him by fleeing, resisting officers attempting to arrest him, and the application of the contact bite by the K-9.


While Sanders’s criminal case was pending, he filed an action alleging a violation of his Fourth Amendment rights under 42 U.S.C. section 1983, alleging the officer’s use of the police dog was excessive. Sanders also sued the other officers at the scene and the City of Pittsburg. The City and officers jointly moved to dismiss Sanders’s complaint. The District Court granted the motion, holding that Heck v. Humphrey, 512 U.S. 477 (1994), barred Sanders’s claim against Officer Bryan and that the claims against the other officers and the City failed as a result. Sanders appealed.


Held: The Ninth Circuit Court of Appeals explained that under Heck v. Humphrey, a Section 1983 claim must be dismissed if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the conviction or sentence has already been invalidated. Heck, 512 U.S. at 487. To avoid the Heck bar on an excessive-force claim, a plaintiff must not imply an officer acted unlawfully during the events that form the basis of a resisting-arrest conviction under Penal Code section 148(a). Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005). Heck thus bars a plaintiff’s action if it would negate an element of the offense, Smith, 394 F.3d at 695, or allege facts inconsistent with the plaintiff’s conviction, Beets v. Cnty. of Los Angeles, 669 F.3d 1038, 1046 (9th Cir. 2012).


The Court of Appeals observed that Sanders was charged with resisting arrest under Section 148(a)(1), which prohibits “resist[ing], delay[ing], or obstruct[ing]” a police officer during the discharge of his duties. Under California law, a conviction under this statute requires that the defendant’s obstructive acts occur while the officer is engaging in “the lawful exercise of his duties.” Smith, 394 F.3d at 695. The Court explained that because the use of excessive force by an officer is not within the performance of the officer’s duty,[1] the “lawfulness of the officer’s conduct” is necessarily established as a result of a conviction under Section 148(a)(1). Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1130 (9th Cir. 2011).


The Court found that the factual basis for Sanders’s plea was based on multiple acts of resisting arrest, including his struggle with officers when the K-9 bit him. The Ninth Circuit Court of Appeals held that Sanders could not stipulate to the lawfulness of the dog bite as part of his Section 148(a)(1) guilty plea and then use the same act to allege an excessive force claim under Section 1983. Success on such a claim would “necessarily imply” that his conviction was invalid. Heck, 512 U.S. at 487. The Court stated that there was no way to carve out the dog bite from the Section 148(a)(1) conviction without “necessarily imply[ing]” that the conviction was invalid.[2] The Ninth Circuit Court of Appeals concluded that Sanders’s claim against Officer Bryan was, therefore, barred under Heck, and accordingly affirmed the dismissal of Sanders’s claims.


For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 18, available at www.jones-mayer.com.


D. Statements made post Miranda warning are excludable when facts support conclusion that questioning was one interrogation with a Miranda warning sandwiched in between.


People v. Sumagang, 69 Cal. App. 5th 712 (6th Dist. 2021)


Facts: In November 2014, police responding to a hang-up 911 call from a remote rural area in Monterey County found Byron Silim Sumagang asleep in the back of a car in a remote rural area. Carole Sangco’s deceased body was lying on top of him. The police took Sumagang into custody. About two days later, Monterey County Sheriff’s office Detective Terry Rahiri subsequently interviewed Sumagang in two stages—first without warning him under Miranda,[3] and then again after warning him. In both parts of the interview, Sumagang confessed that he killed his girlfriend Sangco as part of a botched double-suicide attempt. The prewarning part of the interview lasted 25 minutes, followed by a two-minute break. Upon returning from the break, Detective Rahiri administered Miranda warnings and continued the interview for another 45 minutes. After warning Sumagang, Detective Rahiri questioned him in a narrative fashion about the events leading up to Sangco’s death. Detective Rahiri asked about many of the same topics they had covered in the prewarning part of the interview. Detective Rahiri again asked Sumagang to explain how he killed Sangco, what she said when he did so, and how her body reacted as she appeared to go lifeless. Regarding the prewarning interview, Detective Rahiri later testified that he “chose not to” warn Sumagang under Miranda because Detective Rahiri “wanted to see what he had to say first.”


The prosecution charged Sumagang with first-degree murder. Sumagang moved pretrial to exclude all statements he made during the entirety of the interview under Miranda and on the ground the statements were involuntary. After a hearing on the motion, the trial court found the confession was not coerced or involuntary. The trial court ruled that the prewarning part of the interview was inadmissible except for impeachment purposes, and the postwarning part was ruled admissible in the prosecution’s case in chief. The postwarning portion of the interrogation was recorded on video, which the prosecution showed to the jury. The jury found Sumagang guilty of first-degree murder. The trial court imposed a term of 25 years to life in state prison.


Held: On appeal, Sumagang argued that the trial court erred by denying his motion to exclude the postwarning part of the interview under Missouri v. Seibert (2004) 542 U.S. 600, 608. The Attorney General contended that the trial court properly admitted it because the interview was voluntary and the detective did not intentionally undermine the Miranda warnings. The Sixth District Court of Appeal observed that Seibert held that postwarning statements are inadmissible under certain circumstances, but the Supreme Court was divided with respect to what circumstances are required or what the test should be. Here, the Attorney General contended that Justice Kennedy’s concurring opinion in Seibert represented the holding of the Supreme Court because it provided the narrowest grounds for supporting the judgment.[4] The Sixth District assumed, without deciding, that Justice Kennedy’s concurrence controlled the analysis.


Justice Kennedy’s test focused on the interrogator’s intent and would find the postwarning portion of the interrogation inadmissible only if “the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) The Sixth District here considered whether the record demonstrated that the two-step tactic was employed to deliberately circumvent Miranda here by Detective Rahiri.


The Court stated that regardless of any good faith mistake at the outset of the interview, at some point Detective Rahiri determined that he needed to give Miranda warnings. The issue for the Court was whether the government proved by a preponderance of the evidence that, after coming to that realization, the detective “did not deliberately withhold the requisite warnings as part of a calculated strategy to foil Miranda.” United States v. Guillen, 995 F.3d 1095, 1121 (10th Cir. 2021).


The Court explained that “deliberateness may…be inferred from objective indications of subjective intent to frustrate Miranda” (Guillen, supra, 995 F.3d at p. 1121), and found that the evidence supported an inference of deliberateness. Like the officer in Seibert, Detective Rahiri “relied on the defendant’s prewarning statement to obtain the postwarning statement” in a fashion that “resembled a cross-examination.” (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy, J.).) In the postwarning part of the interview, for example, Detective Rahiri asked leading questions that incorporated incriminating statements Sumagang had only made prewarning. The Court also found that the fact that no curative steps were taken also weighed in favor of exclusion, explaining that there was no substantial break in time or circumstances between the two parts of the interrogation, nor any other circumstance that would have “allow[ed] the accused to distinguish the two contexts and appreciate that the interrogation ha[d] taken a new turn.” (Id.) The Court added that the use of a two-step interrogation here, whether deliberate or otherwise, did not serve any legitimate purpose. Viewing these and other factors[5] together with Detective Rahiri’s testimony, and considering the overall setting and context of the interrogation, the Court concluded that the detective deliberately undermined Miranda by employing the two-step interrogation tactic. After also finding that the trial court erred in denying Sumagang’s motion to exclude, the Court of Appeal determined the error was prejudicial. The Sixth District accordingly reversed the judgment.


E. Court finds genuine dispute of material fact as to whether law enforcement officers violated plaintiff’s constitutional rights before any exigent circumstances existed.


Murchison v. Cnty. of Tehama, 2021 Cal. App. LEXIS 817 (3rd Dist. Sep. 30, 2021)


Facts: A real estate agent and his client encountered plaintiff Michael Vern Murchison at or near Murchison’s rural property. The agent called the Tehama County Sheriff’s Department (“Department”) regarding the encounter, apparently reporting that the client thought that Murchison might have had a handgun in his pocket. Sergeant Richard Knox and Sheriff’s Deputy Jeff Garrett discovered that Murchison was a convicted felon, which they believed precluded him from owning, possessing, or controlling firearms. They drove in an unmarked vehicle to Murchison’s property. They dressed in plain clothes in order to conceal their identity as law enforcement officers, intending to provoke Murchison into brandishing a firearm. Knox and Garrett did not obtain a warrant to search Murchison’s property. After an initial encounter with Murchison, the officers decided to leave. However, while in their unmarked SUV, they observed a bolt-action rifle on top of a bench at a distance away from Murchison on the north side of Murchison’s shop adjacent to his house. The rifle was unloaded, and its bolt was back, meaning it was not in a position to be fired. Knox and Garrett got out of the SUV, and Knox began walking very quickly in the direction of the rifle. Knox did not identify himself as law enforcement as he moved toward the rifle. Murchison believed he was being robbed, and began running toward the rifle. The officers began to run toward the rifle. Observing ammunition near the rifle, they believed Murchison could load the rifle and fire at them. Murchison was tackled to the ground from behind and handcuffed. After the officers confirmed Murchison’s assertion that his conviction had been expunged, the officers removed the handcuffs and left.


Murchison brought multiple claims against the officers and the County, including federal law claims under 42 U.S.C. section 1983 of unlawful search and excessive force. The trial court granted defendants’ summary judgment motion in its entirety, concluding that the emergency or exigent circumstances doctrine excused the officers’ entry onto the property when they saw the rifle. Murchison appealed.


Held: The Third District Court of Appeal explained that searches and seizures inside of a home, or within the curtilage,[6] without a warrant are presumptively unreasonable.[7] One exception to the warrant requirement is the existence of exigent circumstances, which justify a warrantless entry, search, or seizure when “‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.”[8] However, officers cannot rely on the exigent circumstances exception to the warrant requirement where they “create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.”[9]


The Court concluded that conclude there was a genuine dispute of material fact as to whether the officers violated Murchison’s constitutional rights before any exigent circumstances existed. In his deposition, Murchison asserted that Knox was past the SUV and was “probably halfway around [his] shop” before Murchison started to run toward the rifle. The Court found that a reasonable jury crediting this testimony could find that Knox had violated the Fourth Amendment by entering Murchison’s curtilage, in which Murchison had a reasonable expectation of privacy, before Murchison began running toward the rifle. The Court concluded that a reasonable jury could find that his injuries were proximately caused by the officers’ warrantless entry. The Court also concluded that the officers were not entitled to qualified immunity as to Murchison’s excessive force claim because there was no particularized legal authority demonstrating that the officers were not permitted to apprehend Murchison in the manner that occurred here. Accordingly, the Third District Court reversed with instructions.





A police chief was not entitled to qualified immunity when an officer asserted that she had been retaliated against for filing sex-discrimination lawsuits.


Ballou v. McElvain, 2021 U.S. App. LEXIS 29267 (9th Cir. Sep. 28, 2021)


Facts: In 2017, Julie Ballou, a police officer with the Vancouver Police Department in Washington, scored third highest on an exam to determine eligibility for promotion to the rank of sergeant. Police Chief James McElvain made promotion decisions, and every time he filled a vacancy, Chief McElvain promoted the highest-ranked person on the relevant list. A supervising sergeant learned that Ballou had failed to write and file a burglary report and initiated an internal affairs investigation into Ballou’s conduct thereafter. Ballou was repeatedly passed over, including when she was highest on the promotion list. Chief McElvain refused to promote her while the investigations were pending. Between February 2018, when she first became eligible for promotion to sergeant, and May 2019, Ballou was the subject of eight internal affairs investigations.


In September 2018, Ballou served a state tort claim on the City of Vancouver, alleging sex discrimination and seeking damages. After another candidate ranked below Ballou was promoted to sergeant, Ballou filed a second state tort claim, alleging further sexual discrimination and “claims for retaliation.” In January 2019, Ballou filed suit under 42 U.S.C. section 1983 in federal court alleging denial of her constitutional equal protection rights. The following week, Chief McElvain announced that he intended to promote Brian Ruder, now the second-ranked candidate, over Ballou. Ruder had previously received a verbal reprimand for failing to write a report on a sexual assault call, but had not, at that time, been subjected to an internal affairs investigation for such conduct. In her amended federal complaint (amended after Ruder’s promotion), Ballou alleged that Chief McElvain violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by discriminating against her on the basis of sex in refusing to promote her and by retaliating against her for objecting to that discrimination.


The District Court denied, in its entirety, Chief McElvain’s motion for partial judgment on the pleadings, in which he asserted qualified immunity as to Ballou’s retaliation claim. The District Court denied Chief McElvain and the City’s subsequent motion for summary judgment on Ballou’s First Amendment claim, and denied Chief McElvain qualified immunity on the ground that the First Amendment prohibited retaliation. Chief McElvain appealed.


Held: The Ninth Circuit Court of Appeals explained that it must affirm the District Court’s denial of qualified immunity if, resolving all factual disputes and drawing all inferences in Ballou’s favor, Chief McElvain’s conduct (1) violated a constitutional right that (2) was clearly established at the time of the violation. See Estate of Anderson, 985 F.3d at 731; see also Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). The Ninth Circuit considered the denial of qualified immunity to Chief McElvain on Ballou’s First Amendment retaliation claim. The Court explained that the First Amendment protects a public employee’s right to speak out against or petition the government—including via a lawsuit—on “matters of public concern.”[10]


Ballou contended that Chief McElvain violated her rights under the Petition Clause of the First Amendment by maintaining repeated internal affairs investigations into her work practices and promoting Ruder over her, in retaliation for her opposition to sex discrimination in the workplace. The Ninth Circuit determined that circuit case law “squarely foreclose[d]” Chief McElvain’s countering contention that Ballou’s complaints and lawsuit pertained only to matters of private concern. Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir. 1997), held that unlawful discrimination is a subject that affects a public employee’s personal interests yet also implicates matters of public concern, recognizing that “the public has an interest in unlawful discrimination” in City government, and that employee speech about such discrimination therefore involves matters of public concern even if it arises out of a personal dispute. Id. at 1224. Moreover, Alpha Energy Savers, Inc. v. Hansen[11] held that “when government employees speak about . . . wrongdoing [or] misconduct . . . by other government employees, . . . their speech is inherently a matter of public concern.”[12] Alpha Energy clarified that “[d]isputes over racial, religious, or other such discrimination by public officials…involve the type of governmental conduct that affects the societal interest as a whole—conduct in which the public has a deep and abiding interest. Litigation seeking to expose such wrongful governmental activity is, by its very nature, a matter of public concern.”[13] The Ninth Circuit held that these precedents clearly established that speech by public employees about unlawful discrimination in the workplace is inherently speech on a matter of public concern.[14] Accordingly, the Court affirmed the denial of qualified immunity to Chief McElvain on Ballou’s First Amendment retaliation claim.


For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 20, available at www.jones-mayer.com.





A. Dual convictions of Vehicle Code sections 23152(a) and 23152(b) prohibiting driving under the influence are “both possible and proper” under controlling precedent.


People v. Grabham, 68 Cal. App. 5th 549 (1st Dist. 2021)


Facts: In September 2019, California Highway Patrol Officers Herve and Bethay initiated a traffic stop of defendant James William Grabham, Jr.’s pickup truck because they noticed defendant looking down at his cell phone while driving and confirmed that his vehicle registration was expired. As Officer Herve approached defendant’s truck, he saw a 12-pack of beer on the bench seat. Officer Herve smelled alcohol coming from the truck, and noticed defendant’s red and watery eyes, slurred speech, and poor ability to follow directions. Officer Herve decided to conduct a full driving under the influence (“DUI”) investigation. Defendant’s performance in several field sobriety tests indicated he was under the influence of alcohol. Officer Herve then arrested defendant and administered a breath test. The first test reported a blood-alcohol content (“BAC”) of 0.12, and the second test reported a BAC of 0.11.


A jury found defendant guilty of driving under the influence of an alcoholic beverage (Vehicle Code section 23152(a)) and driving with a 0.08 BAC (Vehicle Code section 23152(b)). After defendant waived his right to a jury trial on his prior conviction, the trial court found enhancement allegations to be true. The trial court sentenced defendant to three years in state prison but suspended execution of the sentence. Defendant was instead placed on three years of probation on the condition that he participate in a residential treatment program.


Held: On appeal, defendant contended that Sections 23152(a) and (b) are different statements of the same offense and Penal Code section 954 therefore requires vacatur of one of his convictions. Penal Code section 954 prohibits multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.


The First District Court of Appeal disagreed, finding that defendant’s arguments were foreclosed by the holdings in People v. Subramani (1st Dist. 1985) 173 Cal.App.3d 1106 and People v. Duarte (5th Dist. 1984) 161 Cal.App.3d 438. Subramani and Duarte addressed subdivisions (a) and (b) of Section 23153, a nearly identical statute providing the felony counterpart to Section 23152, and both courts held that Section 23153, subdivisions (a) and (b) describe separate offenses.


The Court observed that whether two statutes or statutory provisions describe the same offense “turns on the Legislature’s intent in enacting [the] provisions, and if the Legislature meant to define only one offense, we may not turn it into two.” (People v. Gonzalez (2014) 60 Cal.4th 533, 537.) Here, the First District explained that the statutory structure and related portions of the Vehicle Code demonstrated a clear legislative intent to treat subdivisions (a) and (b) of Vehicle Code section 23152 as separate offenses. Section 23152(a) makes it a crime to drive under the influence of alcohol—that is, to drive while impaired. Section 23152(b), on the other hand, makes it a crime to drive with a BAC of more than 0.08. A crime under section 23152(b) can be committed without violating section 23152(a). Thus, the statutory text and statutory framework as a whole demonstrated the Legislature’s intent to create two separate offenses with subdivisions (a) and (b) of section 23152. Moreover, subdivision (b)’s legislative history demonstrated the legislative intent to “create a new crime,” in addition to and independent of the crime of driving under the influence set forth in section 23152(a). (People v. McNeal (2009) 46 Cal.4th 1183, 1193.) As they were separate offenses, dual convictions under subdivisions (a) and (b) of Section 23152, were therefore “both possible and proper.” (Duarte, at p. 446; see Subramani, at p. 1111.) The First District Court of Appeal accordingly affirmed.


B. City ordinance criminalizing acts related to public drunkenness preempted because it conflicts with Penal Code section 647(f).


Carcamo v. L.A. Cnty. Sheriff’s Dep’t., 68 Cal. App. 5th 608 (2nd Dist. 2021)


Facts: California long ago “adopted a general scheme for the regulation of the criminal aspects of being intoxicated in a public place.” (In re Koehne (1963) 59 Cal.2d 646, 648 (italics removed).) That general scheme is encompassed in Penal Code section 647(f). The California Supreme Court stated in Koehne that “[w]henever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned.” On this principle, the Koehne Court invalidated a city ordinance that prohibited being or appearing “‘in a state of drunkenness or intoxication’” “‘in any public place.’” (Koehne, at pp. 648, 647 (italics removed).)


However, the City of Carson had, at the time of the events in this case, a “public intoxication” ordinance that purported to criminalize conduct that was not unlawful under the Penal Code. In February 2014, Los Angeles County Sheriff’s Department deputies arrested plaintiffs LaShun Carcamo, Anthony January, and Kirby Hales for public intoxication under that ordinance, Carson Municipal Code section 4201. The arrestees spent a night and the better part of the next day in jail. They were never charged. Plaintiffs sued the Department and arresting Deputy Larry Billoups for wrongful arrest.


The trial court declined to address the preemption issue, instructing the jury that, if deputies saw plaintiffs drunk in public, the deputies had reasonable cause to arrest them under the City of Carson’s ordinance. The jury found in defendants’ favor. Plaintiffs appealed.

Held: The Second District Court of Appeal noted that Section 4201, Carson’s ordinance states: “It shall be unlawful for any intoxicated person, or any person in an intoxicated condition, willfully to appear, remain or be in or on any public highway, street, alley, way, park, playground or public place in the incorporated territory of the City of Carson, whether such person is or is not in or upon any automobile, street or interurban car, vehicle or conveyance.” Penal Code section 647(f) states that anyone “found in any public place under the influence of intoxicating liquor … in a condition that they are unable to exercise care for their own safety or the safety of others, or by reason of being under the influence of intoxicating liquor … interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way” is guilty of disorderly conduct. Plaintiffs contended that the City’s ordinance is preempted, and Deputy Billoups did not have reasonable cause to arrest them under Section 647(f) because nothing in the record demonstrated plaintiffs were “unable to exercise care for their own safety or the safety of others,” or that they “interfere[d] with or obstruct[ed] or prevent[ed] the free use of any street, sidewalk, or other public way” as the state statute—but not Section 4201—requires.


The Court held Section 4201 was a void law. The Second District cited Koehne and two other 1963 cases in which the California Supreme Court held that any and all city ordinances criminalizing acts related to public drunkenness are preempted because they conflict with Section 647(f), which preempted the field. Koehne, supra, 59 Cal.2d at p. 649; In re Zorn (1963) 59 Cal.2d 650, 651–652; People v. Lopez (1963) 59 Cal.2d 653–654. The Court added that even if Deputy Billoups believed the City’s Section 4201 still was valid, his good faith belief was irrelevant because the arrests were illegal – the Department could not meet its burden to show its deputies had probable cause to arrest plaintiffs by relying on a void statute. The Second District found that the trial court gave the jury erroneous instruction that was plainly prejudicial, and concluded that the judgment rendered on the jury’s findings must be reversed.


[1] Smith, 394 F.3d at 695.

[2] Heck, 512 U.S. at 487.

[3] Miranda v. Arizona, 384 U.S. 436 (1966).

[4] See Marks v. United States, 430 U.S. 188, 193 (1977) [when a fragmented court decides a case and no single rationale is supported by five or more justices, the holding of the court may be viewed as that position taken by the members who concurred in the judgment on the narrowest grounds].


[5] These other factors were set forth in the Seibert plurality opinion: the completeness and detail of the questions and answers in the prewarning interview, the overlapping content of the two statements, the timing and setting of the first and the second parts, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. The Sixth District concluded that the two-stage interrogation violated not only the standards set forth in Justice Kennedy’s concurrence in Seibert, but also those expressed in the Seibert plurality’s opinion.

[6] “Land or structures immediately adjacent to and intimately associated with one’s home, referred to as ‘curtilage,’ are ordinarily considered part of the home itself for Fourth Amendment purposes.” (People v. Williams, 15 Cal.App.5th 111, 120 (2nd Dist. 2017).)

[7] United States v. Martinez, 406 F.3d 1160, 1163 (9th Cir. 2005); United States v. Duenas, 691 F.3d 1070, 1080-1081 (9th Cir. 2012) [curtilage warrants same Fourth Amendment protection as the home].

[8] Mincey v. Arizona, 437 U.S. 385, 394 (1978).

[9] Kentucky v. King, 563 U.S. 452, 462 (2011).

[10] Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968).

[11] 381 F.3d 917 (9th Cir. 2004).

[12] Id. at 926 (quoting Ceballos v. Garcetti, 361 F.3d 1168, 1174 (9th Cir. 2004), rev’d., 547 U.S. 410 (2006)).

[13] Id. at 926-27.

[14] Moreover, even if precedent had not clearly been established, the Court found that there was sufficient evidence in the record – such as other officers’ meeting with McElvain to discuss perceived discriminatory practices in their workplace including the Vancouver Police Department’s treatment of Ballou, and Ballou’s lawsuit was the subject of at least one news story in the local press – to conclude that the specific expression at issue here was on a matter of more than private concern.