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California Judges Benchbook: Search and Seizure

Unique insights and invaluable information from the late Hon. George Brunn bring clarity to this increasingly complicated area of the law. Published in conjunction with the California Center for Judicial Education and Research.

 

 

“Fourth Amendment law and procedure has continued to receive the active attention of the courts and the state legislature in the 12 years since I wrote the first edition. Paradoxically, as the exclusionary rule has shrunk, the law has become more complicated. I have extensively reworked the book to discuss new developments and to make it more useful. Some topics, such as e-mail search warrant applications, are covered here for the first time. Discussion of other subjects, such as good faith, have been reorganized and expanded.”
Hon. George Brunn

Unique insights and invaluable information from the late Hon. George Brunn bring clarity to this increasingly complicated area of the law. Published in conjunction with the California Center for Judicial Education and Research.

  • The Fourth Amendment and Exclusionary Rule
  • Search warrants, including those electronically generated
  • Temporary detentions and searches incident to arrest
  • Penal Code §1538.5 motions
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“Fourth Amendment law and procedure has continued to receive the active attention of the courts and the state legislature in the 12 years since I wrote the first edition. Paradoxically, as the exclusionary rule has shrunk, the law has become more complicated. I have extensively reworked the book to discuss new developments and to make it more useful. Some topics, such as e-mail search warrant applications, are covered here for the first time. Discussion of other subjects, such as good faith, have been reorganized and expanded.”
Hon. George Brunn

Unique insights and invaluable information from the late Hon. George Brunn bring clarity to this increasingly complicated area of the law. Published in conjunction with the California Center for Judicial Education and Research.

  • The Fourth Amendment and Exclusionary Rule
  • Search warrants, including those electronically generated
  • Temporary detentions and searches incident to arrest
  • Penal Code §1538.5 motions

1

The Fourth Amendment and the Exclusionary Rule

  • Development of the Exclusionary Rule
    • The Exclusionary Rule in California
      • [§1.7] From Proposition 8 to the Present
  • Relation of Fourth Amendment to Exclusionary Rule
    • [§1.10] Meaning of "Search" and "Seizure"
    • Nature and Function of Exclusionary Rule
      • [§1.13] Purposes of Exclusionary Rule
  • Application of Exclusionary Rule to Various Proceedings
    • Application to Stages of a Criminal Case
      • [§1.19] Trial: Impeachment of Defendant
      • Posttrial Phases
        • [§1.21] Parole and Probation Revocation Hearing
    • Application to Other Proceedings
      • [§1.22] Juvenile Court
      • [§1.24] Administrative Proceedings
  • Searches and Seizures by Private Citizens
    • [§1.26] Police Participation or Instigation
    • [NEW] [§1.27A] Acts of Tribal Police Officers
  • Good Faith and Bad Faith
    • Leon and Its Extensions
      • The Leon Good-Faith Exception
        • Illustrative Applications
          • [§1.30] Warrant Lacks Probable Cause
      • The Krull Extension of Leon
        • [§1.37] Unconstitutional Statutes
      • The Evans Extension of Leon
        • [§1.39] Erroneous Warrant Information
        • [§1.40] Erroneous Information Regarding Search Condition
    • Good-Faith Mistakes
      • [§1.42] Mistakes of Law
  • Fruit of the Poisonous Tree
    • Attenuation
      • [§1.45] Basic Principles
      • Applications
        • Confessions Following Illegal Arrest, Detention, or Search
          • [§1.47] Chart: Attenuation as to Confessions After Unlawful Arrest or Detention
          • [§1.49] Fruits of Unlawful Confession
        • Identification Evidence
          • [§1.50] Fingerprints and Other Physical Evidence of Identity
        • [§1.55] Consent
        • [NEW][§1.57A] Discovery of Outstanding Arrest Warrant
        • [NEW][§1.57B] Resisting Arrest
    • Independent Source
      • [§1.58] Basic Principles
    • Inevitable Discovery
      • [§1.60] Basic Principles
      • [§1.61] Applications
      • [§1.62] Limitation: Argument That Search Warrant Inevitably Would Have Been Obtained
  • [NEW] [§1.63] Trial Use of Assertion of Fourth Amendment Rights
  • [NEW] [§1.64] Knock-Notice Violations
  • 2

    Search Warrants

  • [§2.1] Scope of Chapter
  • Constitutional and Statutory Framework
    • [§2.4] Statutory Grounds for Issuance
    • Limitations in Particular Situations
      • Papers of Lawyers, Doctors, Psychotherapists, and Members of Clergy
        • [§2.6] Suspicion of Criminal Activity by Person Whose Place Is To Be Searched
      • Bodily Intrusions
        • [§2.11] In General
        • [§2.12] HIV Blood Testing
      • [NEW] [§2.13A] Military Searches
    • [§2.14] Territorial Jurisdiction
    • [NEW] [§2.14A] Electronic Communications Privacy Act
      • [NEW] [§2.14B] Compelling Production or Access to Information
      • [NEW] [§2.14C] Warrant Requirements
      • [NEW] [§2.14D] Exceptions to Warrant Requirement
      • [NEW] [§2.14E] Voluntary Disclosure
      • [NEW] [§2.14F] Emergency Request for Information
      • [NEW] [§2.14G] Special; Master; Destruction of Unrelated Information
      • [NEW] [§2.14H] Notice Requirements
      • [NEW] [§2.14I] Remedies forNoncompliance
  • Affidavit Requirements
    • Written Affidavits
      • [§2.15] General Rule
      • [§2.18] Partial Loss of Affidavit
    • Sworn Oral Statement, Including Statement for Telephonic Search Warrant
      • [§2.19] Statutory Basis and Use
    • [§2.21] Transmission of Affidavit by Fax or E-mail
    • Probable Cause
      • [§2.22] Basic Standard
      • [§2.23] Contrast to Probable Cause for Arrest Warrant
      • [§2.24] General Principles for Applying Standard
      • Facts, Opinions, Expertise, Informants
        • Opinions and Conclusions
          • [§2.28] Affiant's Experience or Expertise
        • Reliability or Credibility of Information
          • [§2.32] Hearsay
          • [§2.33] Police Informants
          • [§2.34] Citizen Informants
          • [§2.35] Illustrative Decisions Dealing With Informants
      • "Will Be Found in a Particular Place"
        • Inferences From Known Facts
          • [§2.39] Permissible Inferences
          • [§2.40] Impermissible Inferences
        • Current and Stale Information
          • [§2.41] Basic Principles
          • [§2.42] Character of Criminal Activity
      • [§2.43] Anticipatory Warrants
    • [§2.51] Sealing of Affidavit; Hearing
  • Warrant Requirements
    • [§2.56] Form of Search Warrants; Questions for Issuing Magistrates
    • Signature
      • [§2.59] Telephonic Search Warrants
      • [§2.60] Issuance of Search Warrants by Fax or E-mail
    • [§2.62] Naming the Affiant
    • [§2.64] Descriptions of Persons and Places To Be Searched and Property To Be Seized
      • Description of Place To Be Searched
        • [§2.66] Key Issues
      • Description of Property To Be Seized
        • [§2.69] Purpose and Definition of Particularity Requirements: "Meaningful Restriction" Test
        • "Meaningful Restriction" Test in Action
          • [§2.71] Papers and Other Documentary Evidence
          • [§2.72] Indicia-of-Occupancy Clauses
      • Judicial Techniques for Upholding Searches Based on Deficient Descriptions
        • [§2.75] Reference to Affidavit
  • Execution of Warrants
    • Knock-Notice
      • Compliance With Pen C §1531
        • [§2.102] Opportunity To Surrender Premises
      • Substantial Compliance
        • [§2.103] Meanings of "Substantial Compliance"
        • [§2.105] Compliance With Objectives of Statute: the Peterson Principle
      • Excused Noncompliance: Unoccupied Premises and Exigent Circumstances
        • [§2.107] Insufficient Exigent Circumstances; "No-Knock" Warrants
        • [§2.108] Illustrations of Sufficient Exigent Circumstances
      • [§2.109] Effect of Unexcused Knock-Notice Violations
    • Conduct of Search
      • Detention and Search of Occupants During Execution of Warrant
        • [§2.110] Detention
        • [§2.111] Search
      • Seizure of Property Not Described in Search Warrant
        • The Plain-View Exception
          • [§2.113] Basic Principles
          • [§2.115] Linkage Between the Property in Plain View and Criminal Behavior ("Reasonably Identifiable as Contraband")
      • [§2.117] Presence of Third Parties
      • Information to Householders
        • [§2.123] Copy of Warrants
  • Procedural Guides to Telephonic, Fax, and E-Mail Search Warrants
    • [§2.130] Telephonic Search Warrants
    • [§2.131] Warrants Transmitted by Fax or E-mail
  • 3

    Temporary Detentions and Searches Incident to Temporary Detentions

  • Application of Fourth Amendment
    • [§3.3] Effects of Unlawful Detention or Frisk
  • What Constitutes a Temporary Detention
    • [§3.4] Temporary Detentions in the Spectrum of Police-Civilian Contacts
    • Differentiating Detentions From Less Intrusive Contacts
      • [§3.5] Contacts Not Amounting to Seizure ("Consensual Encounters")
      • Test To Determine Temporary Detention
        • [§3.7] Variants of Mendenhall Test
      • Police-Pedestrian Contacts
        • In Airports
          • [§3.12] Advising Person of Freedom To Leave
          • [§3.13] Transforming Encounter Into Detention
        • On Streets
          • [§3.17] Request for Identification and Explanation of Presence
          • [§3.19] Officers in Patrol Vehicle
          • [§3.23] Request To Accompany Officers to Police Station
      • Police Contacts With Persons in Vehicles
        • [§3.24] Drivers
        • Passengers
          • [§3.25] Automatic Detention
          • [§3.26] Unlawful Detention
    • [§3.30] Temporary Detention Distinguished From More Serious Contacts
  • Requirements for Temporary Detentions Related to Crime Investigations and Traffic Violations
    • Standard
      • [§3.31] Objective Basis
      • [§3.32] Totality of Circumstances
      • [§3.33] Level of Suspicion
    • Issues Concerning Application of Standard
      • [§3.36] Conduct Equally Consistent With Innocent Activity
      • [§3.37] Training and Experience of Officer
      • Sources of Information
        • [§3.38] Informants
      • Detentions Within the Home
        • [§3.40] General Principles
      • Descriptions of Suspects and Vehicles
        • [§3.47] Chart: Illustrative Cases Finding Descriptions Inadequate
      • "Fit" and Group Characteristics
        • [§3.48] Ethnicity; Gang Membership
      • [§3.50] Effect of Mistakes
    • Illustrative Situations
      • [§3.56] Presence in High Crime Area
      • [§3.57] Unprovoked Flight
      • [§3.62] Driving Under the Influence
      • Other Traffic Stops
        • [§3.63] Stop for Traffic, Equipment, and Registration Violations
        • [§3.64] Speed Traps
        • [§3.66] Pretext Stop
      • [§3.68] Weapons Violations
    • Duration and Scope of Detention
      • Time Limits
        • Traffic Stops
          • [§3.72] Basic Principles
          • [§3.73] Extension of Traffic Stop
      • Scope of Detention: Officer's Actions
        • [§3.74] Warrant Checks
        • [§3.75] Questioning During Traffic Stop
        • [§3.76] Consent Searches
        • [§3.77] Ordering Out of Car
        • [§3.80] Handcuffing
        • [§3.83] Production of Identification
  • Detentions Not Based on Suspicion of Criminal Activity
    • Vehicle Roadblocks and Checkpoints
      • [§3.85] Basic Principles
      • [§3.90] Balancing Test: Minimizing Intrusiveness
    • Border Detentions
      • [§3.93] At the Border
    • [NEW] [§3.94A] Roving Stops for Game Inspections
  • Searches Incident to Temporary Detentions
    • Searches for Weapons
      • Pat Search
        • [§3.96] Purpose and Grounds
        • [§3.97] Reason To Believe That Detainee Is Armed
      • Search Beyond Pat-down
        • Reaching Into Suspect's Clothing
          • [§3.102] Objects That Feel Like Contraband RatherThan Weapons
    • Search for Identification
      • [§3.106] Persons
  • 4

    Arrest and Searches Incident to Arrest

  • Arrest Without Warrant: Authority and Grounds
    • Authority To Arrest
      • Authority of Peace Officers To Arrest
        • Misdemeanors and Infractions
          • [§4.9] Statutory Requirements; Effects of Violation
          • [§4.10] Components of the In-the-Presence Rule
          • [§4.11] Ability To Testify to Elements of Offense
          • [§4.13] Custodial Arrest for Minor Offenses
        • Territorial Limitations
          • [§4.19] Penal Code §830.1
          • [§4.21] Arrests by Federal Law Enforcement Officers
      • Authority of Private Persons To Arrest
        • [§4.23] Citizen's Arrest
    • Probable Cause
      • [§4.25] Objective Standard
      • [§4.28] Subjective Belief of Officer
      • [§4.29] Totality of Circumstances
      • Description of Suspect
        • [§4.35] Illustrations
      • Probable Cause To Arrest Companion of Principal Suspect
        • [§4.37] Vehicle Occupants
  • Arrest Warrants
    • Types of Arrest Warrants
      • [§4.45] Other Arrest Warrants
    • Probable Cause
      • Showing of Probable Cause
        • [§4.51] General Need for Affidavit
      • [§4.56] John Doe Warrants; Description of Person To Be Arrested
  • Time, Place, and Manner of Arrest
    • Residential Arrests: Payton-Ramey-Steagald Requirements
      • Arrests in Suspect's Residence
        • [§4.61] Need for Arrest Warrant
      • Permitted and Prohibited Police Activities
        • 4.70] Arrest After Defendant Is Asked or Ordered To Step Outside
      • Exigent Circumstances
        • [§4.73] Basic Principles
        • Hot Pursuit
          • [§4.75] Conditions
        • Danger of Destruction or Disappearance of Evidence
          • [§4.76] Factors
          • [§4.77] Illustrations
    • Knock-Notice
      • [§4.80] Elements
      • [§4.83] Parolees and Probationers
    • [§4.88] Notice of Arrest; Showing Warrant
    • Limitations on the Use of Force
      • [§4.89] Basic Principles
  • Postarrest Requirements
    • [§4.92] Right To Make Telephone Calls
    • Duty To Take Arrestee Promptly Before Magistrate
      • [§4.93] 48-Hour Rule
      • [§4.94] Consequences of Unreasonable Delay
    • [NEW] Foreign Nationals
      • [NEW] [§4.102A] Duties of Peace Officers
      • [NEW] [§4.102B] Effects of Violation
  • Searches Incident To Arrest
    • Search of the Person
      • Bodily Intrusions and Strip Searches
        • Blood Samples
          • [§4.119] General Rule
          • [§4.120] Reasonable Manner of Taking Sample
          • [§4.122] Exigent Circumstances
        • [§4.123] Strip and Body Cavity Searches
        • [NEW] [§4.123A] Cheek Swab Search
    • Search Beyond Person of Arrestee
      • Areas Within Arrestee's Immediate Control
        • [§4.124] Chimel Rule
        • [§4.125] Illustrative Cases
      • Vehicles
        • [§4.126] Belton Rule
      • Protective Sweep
        • [§4.129] Conditions for Valid Sweep
        • Factual Basis for Sweep
          • [§4.130] Slight Showing Often Sufficient
          • [§4.131] Protective Sweep After Defendant Removed From Premises or Arrested Outside
          • [§4.135] Lack of Information
        • [§4.136] Scope of Protective Sweep

          5

          Warrantless Searches

        • [§5.1] Introduction and Scope of Chapter
        • Plain View and Miscellaneous Investigative Techniques
          • Reasonable Expectation of Privacy
            • [§5.3] Threshold Questions for Determining Presence of Reasonable Privacy Expectations
            • Reasonableness of Expectation
              • [§5.5] Basic Principle
              • [§5.6] Common Habits in Use of Property
              • [§5.8] Matters Observable by Public
          • Plain View
            • Particular Locations
              • No Violation of Reasonable Privacy Expectations
                • [§5.14] Public Street or Sidewalk; Temporary Shelter
                • [§5.16] Adjacent Room; Neighboring Property
                • [NEW] [§5.18A] Public Parkland
              • Violation of Reasonable Privacy Expectations
                • [§5.19] Yard of Residence
              • [§5.22] Borderline Situations
          • Investigative Techniques
            • Aiding the Senses
              • Optical Aides
                • [§5.30] Thermal Imaging Devices
                • [NEW] [§5.30A] Night Vision Goggles
                • [§5.32] Electronic Tracking Devices ("Beepers")
              • Aural Aids: Wiretaps and Other Listening Devices
                • [§5.33] Basic Principles
                • [§5.34] Exceptions
              • Aiding the Sense of Smell
                • [§5.35] Canine Sniffs
            • [§5.39] Inspection of Bank and Other Third Party Records
            • [NEW][§5.39A] Pen Registers and Trap and TraceDevices
            • Search of Abandoned, Discarded, orDisclaimed Property
              • Meaning of Abandonment
                • [§5.42] Illustrative Cases
              • Discarding
                • [§5.43] Discarding as Abandonment
              • [§5.45] Garbage
              • [§5.47] Disclaimers
              • [NEW] [§5.47A] Packages Consigned to Shipment
        • Warrantless Searches of Motor Vehicles
          • Bases for Searches
            • [§5.54] Search Incident to Arrest
            • [§5.56] Search Under "Automobile Exception"
            • [NEW] [§5.59A] Parole Status of Passenger
          • Inventory Searches of Impounded Vehicles
            • Requirements for Lawful Impoundment NotBased on Probable Cause
              • [§5.62] Right To Impound
              • [§5.63] Standard Criteria
            • Additional Requirements for Inventory Search
              • [§5.64] Not To Further Criminal Investigation
          • Automobile Exception
            • [§5.66] Basic Principles
            • [§5.72] Opportunity To Obtain Search Warrant
            • Scope of Search
              • [§5.73] Basic Principles
              • [§5.74] Containers
            • [§5.76] Time and Place of Search
          • [§5.77] Instrumentality Exception
          • Entries Into Vehicles for Other Purposes
            • To Look for Registration or License
              • [§5.78] Basic Principles
              • Illustrative Cases
                • [§5.81] Unlawful Entries
          • [§5.83] Chart: Comparison of Permitted Warrantless Vehicle Searches
        • Entries To Preserve Life or Property
          • [§5.84] Imminent Danger
          • Factual Basis for Entry
            • [§5.85] Basic Principles
          • [§5.88] Belief and Motive of Officer
          • Homicides and Other Violent Offenses
            • [§5.90] Basic Principles
            • Illustrations
              • [§5.91] Police Conduct Lawful
          • [§5.94] Missing Persons; Unattended Children
        • Consent Searches
          • [§5.102] Overview
          • Scope of Consent
            • Consent To Search
              • [§5.110] Broad Scope
              • [§5.111] Searches Not Within Scope
          • Validity of Consent
            • [§5.112] Basic Principles
            • Factors Affecting Voluntariness
              • [§5.114] Statements Concerning Search Warrants
              • [§5.117] Miranda Admonition
              • [§5.118] Custody; Handcuffs
              • [§5.119] Number of Officers; Time
              • Efforts To Mislead
                • [§5.122] By Police
            • Third Party Consent
              • Actual and Apparent Authority
                • [§5.128] Basic Principles
              • Applications
                • Landlords and Innkeepers
                  • [§5.132] No Authority To Consent
                • Joint Owners, Occupants, and Spouses
                  • [§5.134] Actual Authority
          • Probation and Parole Searches
            • [§5.141] Validity in Absence of Individualized Suspicion
            • Nature and Validity of Search Conditions
              • Validity
                • [§5.144] Probationers
                • [NEW] [§5.144A] Postrelease Community Supervision
                • [§5.146] Deferred Entry of Judgment/Diversion
            • Scope of Search
              • [§5.148] Limited by Scope of Search Condition
              • [§5.149] Construction of Search Conditions
            • [§5.151] Change of Probationary Status
            • [§5.153] Arbitrary or Harassing Searches
            • Police Information Concerning Search Condition
              • [§5.154] Lack of Information
              • [§5.155] Erroneous Information
            • [§5.156] Detention of Others During Search
          • Searches by School Authorities
            • [§5.157] Basic Principles
            • [§5.158] Illustrative Applications
            • Additional Issues
              • [§5.160] Individual Suspicion
  • 6

    Handling Penal Code §1538.5 Motions

  • What Motions Come Within Penal Code §1538.5
    • Grounds for Motion
      • Chemical Tests
        • Penal Code §1538.5 Inapplicable
          • [§6.20] Denial of Choice of Tests
          • [§6.21] Other Claims
      • [§6.22] Racial Profiling
  • "Standing": Defendant May Only Contest Violation of Own Rights
    • [§6.28] Nature of Inquiry
    • Residential Premises
      • [§6.30] Range of Privacy Expectations
      • [§6.31] Co-occupants
    • Vehicles
      • [§6.35] Driver of Stolen Car
      • [§6.36] Passengers
      • [§6.37] Others
    • [§6.39] Transfer of Objects
    • [§6.40] Disclaimers; Contradictory Positions
  • Time and Manner of Making Motions
    • Written Motion
      • Specificity
        • Case Law
          • [§6.45] Warrantless Searches
    • Time for Filing Motion and Response
      • Felonies
        • [§6.47] Motion at Preliminary Hearing
        • Motion After Filing of Information or Indictment
          • [§6.48] 10-Day Notice
  • Motions in Felony Cases
    • By Defendant
      • At Preliminary Hearing
        • [§6.56] Continuances
        • Relitigation in Trial Court
          • [§6.58] By the Defendant
          • [§6.59] By the Prosecution
      • At Trial
        • [§6.77] Motion Disfavored
        • Illustrative Cases
          • [§6.82] Ineffective Representation
    • By Prosecution
      • At Special Hearing Under Pen C §1538.5(j)
        • [§6.85] Basic Principles
  • Hearing
    • [§6.100] Hearing by Magistrate Who Issued Search Warrant
    • [§6.101] Challenging Judge Under CCP §170.6
    • [NEW] [§6.103A] Exclusion of Witnesses
    • Burden and Standard of Proof
      • Warrantless Searches
        • Prosecution Burden
          • [§6.107] Consent
        • Meeting the Prosecution's Burden: Illustrative Cases
          • [§6.109] Information From Other Officers; Harvey-Madden
      • Search and Arrest Warrants
        • [§6.112] Good Faith; Independent Source
        • Attack on Warrant for Misstatements or Omissions
          • [§6.115] Lesser Showing for Discovery
          • [§6.116] In Camera Hearings
    • Evidence and Presentation
      • [§6.123] Order of Proof
      • Hearsay
        • [NEW][§6.128A] Witness's Assertion of Privilege Against Self-Incrimination
        • [§6.129] Later Use of Defendant's Testimony
        • [NEW] [§6.129A] Affidavits
  • Appellate Review
    • Felonies
      • Motion at Preliminary Hearing
        • [§6.132] Review Sought by Defendant
      • Penal Code §1538.5(i) Motion
        • Review Sought by Defendant
          • [§6.135] Postconviction
    • Misdemeanors
      • [§6.141] Appeal by Prosecution
  • Related Proceedings
    • Suppression Issues Raised by Nonparty Under Pen C §1524(c)
      • [§6.147] Issues at Hearing; In Camera Inspection
      • [NEW] [§6.147A] Orders Under Pen C §1524(c)
    • Return of Property
      • After Grant of Suppression Motion
        • [§6.149] Basic Principles
      • [§6.153] Hearing To Determine Whether Seized Documents Are Privileged
      • [§6.154] Nonstatutory Motions
      • [§6.155] Motions Under Forfeiture Statutes
    • [NEW] Production of Copies of Business Records Seized Under Search Warrant
      • [NEW] [§6.156A] Demand and Declaration
      • [NEW] [§6.156B] Meaning of "Business" and "Business Records"
      • [NEW] [§6.156C] Costs of Producing Copies
      • [NEW] [§6.156D] Response to Demand for Production
      • [NEW] [§6.156E] Motion for Extension of Time
      • [NEW] Motion To Deny Copies
        • [NEW] [§6.156F] Grounds for Motion
        • [NEW][§6.156G] Venue, Time for Filing, and Time of Hearing
        • [NEW][§6.156H] Government's Right to In Camera Hearing
        • [NEW] [§6.156I] In Camera Hearing: Procedure
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