December 2016 Case Summaries

Prepared By: Brittany E. Roberto and Martin J. Mayer of Jones & Mayer

CONSTITUTIONAL LAW

  1. Officers’ warrantless search of defendant’s cell phone violated the Fourth Amendment, and good faith exception to exclusionary rule did not apply.

People v. Macabeo, 1 Cal. 5th 1206 (2016)

FactsIn July 2012, while on routine patrol in a residential neighborhood around 1:40 a.m., Torrance Police Department officers Hayes and Raymond observed Paul Macabeo riding his bicycle. Macabeo was not riding erratically and did not appear to be trying to evade them. They followed Macabeo with their headlights off for about 50 to 75 feet. They observed him roll through a stop sign, an infraction under Vehicle Code section 22450,[1] so they activated their overhead lights and stopped Macabeo.

First, while Macabeo stood astride his bicycle, Hayes asked Macabeo a series of questions relating to his identity and probation status. Macabeo initially indicated that he was on probation, but subsequently, in response to a question about when he would be discharged from probation, stated that his case had been dismissed and that he did not have a probation officer. Hayes and Raymond did not check to see if he was on probation.

Hayes directed Macabeo to walk toward the police car, put his hands up, and spread his feet. Hayes asked if Macabeo had a problem with him removing items from his pockets, and Macabeo told him to go ahead. Hayes removed several items, including Macabeo’s cell phone. Hayes questioned Macabeo about his drug use, living situation, financial situation, and prior arrests. He then directed Macabeo to sit on the curb with his ankles crossed. Hayes asked if the bicycle belonged to Macabeo, and Macabeo indicated that it belong to his girlfriend. Hayes asked for Macabeo’s girlfriend’s name and address.

Hayes then directed Macabeo to take his shoes off one at a time and hand them over to him. He also ordered Macabeo to put his hands on his head. Macabeo asked twice if he was under arrest. Although the officers did not ask for permission to activate Macabeo’s phone or examine its contents, after about five to 10 minutes, Raymond told Hayes that he did not find any suspicious text messages, but that there were photos of underage girls. The officers arrested Macabeo.

At the preliminary hearing, Macabeo moved to suppress the evidence found on his phone, arguing that the search resulted from an unduly prolonged and unjustified detention. At the suppression hearing, Hayes characterized the interrogation as basic questions that he asks during a stop. He repeatedly testified that he decided to search Macabeo based on his probationary status and his belief that Macabeo’s consent to remove the items from his pocket constituted consent to search the contents of his phone. Hayes testified that, after they Macabeo, he ran a search and learned that Macabeo had not been on probation for several months.

The trial court denied the motion. The Court of Appeal affirmed, concluding that good faith exception applied. The California Supreme Court granted review.

Held: The warrantless search of the contents of Macabeo’s cell phone ran afoul of Riley v. California.[2] The Supreme Court explained that, even before Riley was decided, the search would not have qualified as a search incident to arrest under People v. Diaz.[3] The Court distinguished Macabeo’s case from that of Diaz, noting that Diaz involved a proper custodial arrest, where a cell phone was taken and later searched. The Court also noted that the arrest in Diaz was supported by probable cause independent of the information later found on the defendant’s phone. In contrast, Macabeo was not under arrest when the officers searched his phone.

After reviewing analogous case law, the Court summarized the posture of Macabeo’s case as: (1) the search of his phone was conducted without a warrant and was improper unless justified by an exception to the warrant requirement; (2) Macabeo was not on probation, so the search could not be justified by that nonexistent status; (3) the People conceded that Macabeo did not consent to the search of his phone; (4) the search did not qualify as incident to arrest under the Fourth Amendment; and (5) even if Macabeo had been properly arrested, pursuant to Riley, a warrant was required to search the phone. Thus, the Court noted, the only way to avoid suppression of the evidence found on Macabeo’s phone was if the good faith exception to the warrant requirement applied.

The Court, citing United States Supreme Court precedent, explained that the good-faith reliance doctrine is objective, fact-based, and limited, and that the good-faith inquiry is limited to the question of whether a reasonably well-trained officer would have known that the search was illegal. The Court concluded that a reasonably well-trained officer would know that the search of Macabeo’s phone did not qualify as one incident to arrest. It noted that such an officer would know the general rule that a search must be authorized by a warrant, and that the search incident to arrest exception is based on the need to protect officer safety, preserve evidence, or prevent escape, concerns that are relevant when a suspect is going to be arrested. Here, however, the Court found a reasonably well-trained officer would have known that state law prohibited an arrest for the traffic infraction, and there was no objective indication that Hayes and Raymond were going to disobey state law and arrest Macabeo.

The Court noted that the officers’ conduct was deliberate, and exclusion of the evidence would serve to deter future similar behavior by ensuring that officers have a reasonable knowledge of what the law prohibits and discouraging unjustified conduct. The Court remanded the case to the Court of Appeal, and directed it to return the case to the trial court with instructions to suppress the data seized from Macabeo’s cell phone.

2. Defendant’s unadmonished responses to questions about gang affiliation required to be suppressed where defendant unequivocally invoked his right to counsel and questions were reasonably likely to elicit an incriminating response.

United States v. Williams, 2016 U.S. App. LEXIS 21621 (9th Cir. Dec. 5, 2016)

FactsSan Francisco Police Department (“SFPD”) officers arrested Antonio Gilton for murder on the afternoon of July 4, 2012. The officers initially took Gilton to a local police station, and then transported him later that evening to the San Francisco Hall of Justice. At the Hall of Justice, an inspector gave Gilton his Miranda v. Arizona[4] warnings, and Gilton unequivocally invoked his right to an attorney.

Gilton was taken to county jail and placed in a holding cell. At approximately 2:30 a.m. on July 5, a sheriff deputy removed Gilton from the cell. Without advising Gilton that he could return to his cell without answering any questions or that he had a right to have his attorney present, or that his answers could be used against him, the deputy asked Gilton whether he was a gang member. Gilton indicated that he was.

Initially, Gilton was charged with a number of state law violations, including murder. In November 2013, a federal grand jury indicted Gilton, and the state charges were dismissed. A subsequent superseding indictment charged Gilton with, among other things, conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), an element of which was Gilton’s membership in a RICO enterprise, the gang, and murder in the aid of racketeering.

Gilton moved to suppress the statements made to the deputy relating to gang affiliation. The district court granted the motion to suppress. The government appealed.

Held: When a defendant charged with murder invokes his or her rights under Miranda v. Arizona, the government may not, in its case-in-chief, admit evidence of a prisoner’s unadmonished responses to questions about his gang affiliation. In reaching its conclusion, the Ninth Circuit explained that the “booking questions exception” exempts from Miranda coverage questions to secure the biographical data necessary to complete the booking or pretrial services, such as name, address, height, weight, eye color, date of birth, and current age. However, the Court noted the exception is subject to the qualification that, when an officer has reason to know that a suspect’s answer might incriminate him or her, routine questioning could amount to interrogation. The test to determine whether questioning amounts to interrogation is whether, in light of the circumstances, the police should have known that a question was reasonably likely to elicit an incriminating response.

In response to the government’s argument that the deputy could not have known that a response was reasonably likely to be incriminating because no gang-related charges were pending when he asked Gilton about gang affiliation, the Court explained that gang membership exposes a defendant to both federal and state criminal liability. It noted that the risk that information about gang affiliation will be incriminating is greater when a defendant is charged in California with murder. Given that, at the time the deputy asked about Gilton’s gang membership, Gilton had been arrested on charges of murder and conspiracy to commit murder, the Court concluded that questions about gang affiliation were reasonably likely to elicit an incriminating response.

The Court expressly noted that it was not holding that prison officials could not inquire into a prisoner’s gang membership in the interests of public safety or that responses to such questions could not be used for purposes of inmate housing. Instead, it explained, its holding was only that when a defendant charged with murder invokes his or her Miranda rights, the government may not in its case-in-chief admit evidence of the defendant’s unadmonished responses to questions about his or her gang affiliation.

 

3. California’s 10-day waiting period for subsequent gun purchasers does not violate the Second Amendment.

Silvester v. Harris, 2016 U.S. App. LEXIS 22184 (9th Cir. Dec. 14, 2016)

Facts: In December 2011, a group of individuals, firearm-rights organizations, the Calguns Foundation, and the Second Amendment Foundation, Inc. (“Plaintiffs”), filed a lawsuit challenging the 10-day waiting period imposed by California Penal Code sections 26815[5] and 27540[6] as applied to three classes of “subsequent purchasers” of firearms. The district court, applying intermediate scrutiny, found that, while the State of California (“State”) has important interests in public safety and reducing gun violence, those interests were not furthered by a 10-day waiting period for subsequent purchasers who passed the background check in less time. The district court entered judgment for the Plaintiffs, and the State appealed.

Held: The challenged provisions do not violate the Second Amendment rights of the subsequent purchasers because the 10-day waiting period provides time for both a background check and a cooling-off period to deter violence that results from impulsive purchases of firearms.

In reaching its decision, the Ninth Circuit explained the history and purpose of California’s waiting period laws. The Court noted that, since 1923, the State has required potential firearms purchasers to wait for some period of time before taking possession of a firearm, and that the amount of time has fluctuated mainly due to the nature of the background check. It noted that the legislative purpose has always been to allow time for background checks, and, additionally, in 1996, the Legislature expressed that it intended the waiting period to prevent immediate access to firearms to reduce impulsive purchases of firearms for violent purposes.

The Court applied intermediate scrutiny to the waiting period, applying a two-step analysis that looks, first, to the government’s objectives in enacting the regulation and, second, to whether the regulation is reasonably suited to achieve those objectives. The Court found the first step was satisfied, noting the waiting period’s objective of promoting safety and reducing gun violence. As to the second step, the “reasonable fit,” the Court cited the legislative intent of providing a cooling-off period and the State’s reliance in the district court on studies that demonstrated that a cooling-off period could prevent or reduce impulsive acts of gun violence or self-harm. The Court noted that the studies confirmed that urges to commit violent acts or self-harm may dissipate after there is some time to calm down, which applies equally to first time and subsequent purchasers.

The Court also reasoned that an individual who desires to purchase a weapon for criminal purposes may not possess the weapon suitable to achieve those purposes, so the 10-day cooling-off period serves to discourage such conduct and does not impose a serious burden on core Second Amendment rights. Thus, the Court found that the State established there was a reasonable fit between the important safety objectives and their application to Plaintiffs. It concluded that not only does the 10-day waiting period provide time for a background check, it also provides for a cooling-off period to deter violence resulting from impulsive purchases of firearms. Therefore, the 10-day waiting period did not violate Plaintiffs’ Second Amendment rights.

 

PEACE OFFICER PERSONNEL RECORDS

Officer demonstrated a plausible factual basis sufficient to establish good cause and obtain an in camera hearing for the personnel records of other officers he requested in connection with his retaliation lawsuit against the city.

Risk v. Superior Court, 6 Cal. App. 5th 647 (2d Dist. 2016)

FactsRobert Riske worked as a police officer for the Los Angeles Police Department (“LAPD”) from 1990 until he retired in September 2014. After he retired, he sued the City of Los Angeles (“City”), alleging that LAPD had retaliated against him for protected whistleblower activity by failing to assign or promote him to several positions, instead selecting less qualified candidates. He alleged that, in 2008, while he was working as a detective-I, he reported two fellow officers for filing false police reports, and testified against them in an administrative hearing that ultimately resulted in their termination. He alleged that, afterward, he was referred to as a “snitch,” and his colleagues refused to work with him and ignored his requests for assistance in the field, which caused Riske to transfer divisions. Riske alleged that he applied for 14 detective-I and detective-II positions between 2011 and 2013, and, although he had superior qualifications, his applications were denied each time and the positions given to less experienced or less qualified individuals.

Riske made a discovery request to the City for all documents submitted by successful candidates for the relevant positions and for the documents relied upon by LAPD in selecting those officers for the positions. The City produced some documents, but did not produce anything from the candidates’ confidential personnel files. Riske moved under Evidence Code sections 1043[7] and 1045[8] for the production of the training evaluation and manage systems (“TEAMS”) reports and the last two performance evaluations of the officers selected. In support of his motion, Riske filed an affidavit from retired LAPD Captain Justice, a 21-year veteran of LAPD, who was familiar with LAPD’s hiring policies and procedures during the time Riske submitted his applications for promotion and/or reassignment. Justice indicated that all officers applying for the positions Riske identified were required to submit their TEAMS reports and their last two performance evaluations, and the supervisors making the hiring/assignment/promotion decision were required to consider that information in giving overall ratings to applicants. He also indicated that both the TEAMS reports and the performance evaluations were important because they reflected different information, with the performance evaluations reflecting receipt of a “notice to correct” conduct, which the TEAMS report would not contain.

The City opposed Riske’s motion, arguing that peace officer personnel records are confidential and the statutory scheme allowing discovery of those records did not apply when the officers whose records were sought had neither witnessed nor been accused of any misconduct. The City also argued that Riske failed to show good cause for production of the records. The superior court denied Riske’s motion, agreeing with the City’s position that the discovery procedures applicable to personnel records did not apply to officers who had not committed or witnessed any misconduct.

Riske filed a petition for writ of mandate challenging the superior court’s ruling on his discovery motion.

Held:   Evidence Code sections 1043 and 1045 are not limited to cases involving officers who either witnessed or committed misconduct. In reaching its conclusion, the Second District first explained the legislative backdrop of sections 1043 and 1045, citing Pitchess v. Superior Court[9] and the Legislature’s creation of a statutory scheme for the limited discovery of peace and custodial officer personnel records in civil and criminal cases. The Court noted that the required two-step process[10] for discovery of peace officer personnel records balances the officer’s privacy interests in his or her personnel records with the needs of civil litigants and criminal defendants to obtain information material to their claim or defense.

Then, applying the rules of statutory construction, the Court found that the language of Evidence Code section 1043(b)(3) is plain and unambiguous. The Court explained that the critical limitation for purposes of the initial determination is materiality, which means the evidence sought is admissible or may lead to the discovery of admissible evidence. The Court further concluded that Riske demonstrated a factual basis sufficient to establish good cause and obtain an in camera hearing. The Court noted that his case rested on the premise that individuals less qualified than him were promoted ahead of him in retaliation for his whistleblower activity. Since the City contended that the successful candidates were more qualified, the Court found that the information contained in the TEAMS reports and performance evaluations of the successful candidates could be material to Riske’s claim that the City’s stated business reason was pretext for unlawful retaliation. The Court also found that Riske had made the required plausible factual showing of materiality, by articulating his whistleblower activity and a history of being maligned by other officers for that activity, his qualifications for each of the 14 positions for which he applied, and by alleging that he was more qualified than the candidates selected. The Court found no further particularity was required.

Thus, the Court concluded that Riske established good cause to obtain an in camera review of the requested TEAMS reports and performance evaluations. The Court ordered the superior court to vacate its previous order and enter a new order directing the City to produce the TEAMS reports and performance evaluations for an in camera inspection.

 For a more detailed discussion of this case, please see Client Alert Vol. 31, No. 26, authored by Martin J. Mayer and available at www.jones-mayer.com.

CALIFORNIA PUBLIC RECORDS ACT

 Legal invoices are not categorically exempt from disclosure under the Public Records Act.

Los Angeles County Bd. of Supervisors v. Superior Court, 2016 Cal. LEXIS 9629 (Cal. Dec. 29, 2016)

Facts: In July 2013, following inquiries into allegations of excessive force against inmates in the Los Angeles County jail system, the ACLU submitted a Public Records Act (PRA) request to the Los Angeles County Board of Supervisors and Office of the Los Angeles County Counsel. The request sought invoices specifying the amount that the County had been billed by any law firm in connection with nine lawsuits alleging excessive force against jail inmates.

The County agreed to produce copies of the requested invoices for three of the lawsuits that were no longer pending, with attorney-client privileged and work product information redacted. The County declined to provide invoices for the remaining lawsuits, which were still pending. The County cited Government Code sections 6254(k)[11] and 6255(a)[12] as exempting the invoices from disclosure. In October 2013, the ACLU filed a petition for writ of mandate in the superior court, seeking to compel the County to disclose the requested records for all of the lawsuits. Following a hearing in June 2014, the superior court concluded that the County failed to show the invoices were attorney-client privileged communications, and ordered the release of the requested invoices. The superior court authorized the County to redact information that reflected an attorney’s legal opinion or advice or that revealed an attorney’s mental impressions or theories of a case.

The County filed a petition for writ of mandate in the Court of Appeal. The Court of Appeal granted the County’s petition and vacated the superior court’s order, concluding the invoices were confidential communications within the meaning of Evidence Code section 952 and were therefore exempt from disclosure under Government Code section 6254(k). The California Supreme Court granted review.

Held: Invoices for legal services are not categorically privileged as attorney-client communications and may be subject to disclosure under the PRA. The Supreme Court, in reaching its decision, applied Evidence Code section 954[13] and the definition of “confidential communication” set forth in Evidence Code section 952[14] to the County’s invoices for legal services. It explained that the attorney-client privilege only protects communications between attorney and client made for the purpose of seeking or delivering the attorney’s advice or legal consultation. The Court acknowledged that billing invoices are not generally made for the purpose of legal representation. However, it explained that the information contained in certain invoices could be within the scope of the privilege, such as information that informs a client of the nature or amount of work occurring in connection with a pending legal issue. Therefore, when a legal matter is pending and active, the Court explained, the attorney-client privilege encompasses everything in an invoice, including the amount of aggregate fees, since an invoice that shows a sudden increase in spending could reveal a government agency’s investigative efforts and trial strategy.

Thus, the Court concluded that invoices for legal services are not categorically privileged. Instead, the Court held, the contents of a legal invoice are privileged only if they communicate information for the purpose of legal consultation, or risk exposing information that was communicated for such a purpose, which includes any invoice that reflects work in active litigation.

Footnotes

[1] “(a) The driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection shall stop at a limit line, if marked, otherwise before entering the crosswalk on the near side of the intersection.

If there is no limit line or crosswalk, the driver shall stop at the entrance to the intersecting roadway.”

[2] 134 S. Ct. 2473 (2014).

[3] 51 Cal. 4th 84 (2011).

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

[5] “No firearm shall be delivered:

(a) Within 10 days of the application to purchase, or, after notice by the department pursuant to Section 28220, within 10 days of the submission to the department of any correction to the application, or within 10 days of the submission to the department of any fee required pursuant to Section 28225, whichever is later.…”

[6] “A dealer, whether or not acting pursuant to Chapter 5 (commencing with Section 28050), shall not deliver a firearm to a person, as follows:

(a) Within 10 days of the application to purchase, or, after notice by the department pursuant to Section 28220, within 10 days of the submission to the department of any correction to the application, or within 10 days of the submission to the department of any fee required pursuant to Section 28225, whichever is later. …”

[7]“(a) In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.

(b) The motion shall include all of the following:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.

(2) A description of the type of records or information sought.

(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.

(c) No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.”

[8] “(a) Nothing in this article shall be construed to affect the right of access to records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which the peace officer or custodial officer, as defined in Section 831.5 of the Penal Code, participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties, provided that information is relevant to the subject matter involved in the pending litigation.

(b) In determining relevance, the court shall examine the information in chambers in conformity with Section 915, and shall exclude from disclosure:

(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought.

(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.

(3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.

(c) In determining relevance where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the court shall consider whether the information sought may be obtained from other records maintained by the employing agency in the regular course of agency business which would not necessitate the disclosure of individual personnel records.

(d) Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showing the necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.

(e)  The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.”

[9] 11 Cal. 3d 531 (1974).

[10] The first step requires the threshold showing of materiality and good cause, in the manner required by Evidence Code section 1043. Then, if materiality and good cause are shown, the court conducts an in camera review of the records sought in accordance with Evidence Code section 1045.

[11] “(k) 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.”

[12] “(a) The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”

[13]  “Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.”

[14] “As used in this article, “confidential communication between client and lawyer” means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”

 





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