The Criminal Docket

A  PUBLICATION  OF  THE  CRIMINAL  JUSTICE  SECTION OF  THE  LOS  ANGELES  COUNTY  BAR  ASSOCIATION

December, 2006      

Volume I , Number 7 

OneMinuetBrief.GIF

COPYRIGHT © 2006 LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE.  ALL RIGHTS RESERVED.  MAY BE REPRODUCED FOR NON-COMMERCIAL PROSECUTORIAL, LAW ENFORCEMENT AND EDUCATIONAL PURPOSES ONLY. drutledge@lacountyda.org


NUMBER: 2006-22 DATE: 08-25-06 BY: Devallis Rutledge TOPIC: Field Fingerprinting

ISSUE: Under what circumstances may an officer take fingerprints from a suspect in the field?

    
That a lawfully arrested person may be fingerprinted as a part of routine booking has long been established. Schmerber v. California (1966) 384 US 757, 764. But where there is no PC to arrest a suspect and his or her prints are not on file, how can police obtain them?
     Evidence, including fingerprints, may always be obtained with the voluntary consent of the person from whom it is taken. Schneckloth v. Bustamonte (1973) 412 US 218, 218-232. Therefore, fingerprints may be taken during a consensual encounter or valid detention, if done with the consent of the person being printed. The prints themselves, being constantly exposed in public to whatever the person may touch, do not likely enjoy any legitimate expectation of privacy:

"In Davis v. Mississippi..., the United States Supreme Court indicated that fingerprinting may not implicate the Fourth Amendment since it 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' ... [T]he physical process by which fingerprints are taken does not ... readily offend those principles of dignity and privacy which are fundamental to our notion of due process."  
Perkey v. DMV (1986) 42 Cal.3d 185, 191

    If police wish to take print exemplars in the field from a person who does not consent to the process, there must be reasonable suspicion to detain and to believe that the fingerprints will help to negate or establish that person's guilt (i.e., workable latents were lifted at the crime scene). Taking prints typically requires some physical touching of the person, and even if an encounter begins consensually, it becomes a detention when there is "some physical touching of the person of the citizen." US v. Mendenhall (1980) 446 US 544, 554. Therefore, taking prints in the field involuntarily by holding and manipulating the person's hands and fingers for scanning or inked impressions will convert a consensual encounter into a detention, which will require reasonable suspicion. Davis v. Mississippi (1969) 394 US 721, 727.

"None of the foregoing implies that a brief detention in the field for the purpose of fingerprinting ... is necessarily impermissible.... [T]he Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect's connection with that crime, and if the procedure is carried out with dispatch."  Hayes v. Florida (1985) 470 US 811, 816-17

   "Law enforcement officials are required to demonstrate that they have ... at least an articulable suspicion to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense."  

US v. Kincade (9th Cir. 2004) 379 F.3d 813, 836, fn. 31.

BOTTOM LINE: "To be admissible, fingerprints must be obtained voluntarily or pursuant to a lawful detention...." People v. Rosales (1984) 153 Cal.App.3d 353, 364.

This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to insure currency after publication.  Local policies and procedures regarding application should be observed.

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NUMBER: 2006-23 DATE: 09-11-06 BY: Devallis Rutledge TOPIC: Negotiated Pleas & 654

ISSUE: How does PC § 654 affect the selection of counts to be admitted or dismissed in a negotiated plea?

     Tuyen Thanh Le and friends went from store to store, loading up merchandise, taking it out without paying, and driving away. Le was the driver. After hitting the Safeway store in Mountain View, they went directly to Long's Drug for a repeat crime. The Long's manager tried to stop Le, and the shoplift/burglary turned into an Estes robbery. Le was charged with two counts of second degree burglary and one count of second-degree robbery.
     In a negotiated plea, the DDA (Santa Clara County) agreed to accept nolo pleas to the two crimes at Long's and to dismiss the Safeway burglary. The court struck two of Le's three prior strikes and he was sentenced to 12 years and 4 months, which included a consecutive term of 16 months for the burglary count.
     The Court of Appeal stayed the burglary sentence as constituting an unlawful multiple punishment under PC § 654, since both the burglary and the robbery at Long's were a means of accomplishing a single criminal objective and parts of an indivisible course of conduct. The amount of Le's restitution fine was also reduced accordingly. People v. Le (2006) 136 Cal.App.4th 925, 931.
     Had the DDA negotiated for a plea as to the Long's robbery and the Safeway burglary and dismissed the Long's burglary, the consecutive sentence would have been permissible, and the restitution fine would have been higher.

BOTTOM LINE: Plea negotiations should take PC § 654 into consideration.

This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to insure currency after publication.  Local policies and procedures regarding application should be observed.


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NUMBER: 2006-24 DATE: 10-13-06 BY: Devallis Rutledge TOPIC: Vouching

ISSUE: May trial attorneys bolster their case with personal opinions and assurances, or attack the adversary's case by impugning opposing counsel?


Short answer: obviously not. Most attorneys are well-aware that Rule 5-200(E) of the Rules of Professional Conduct forbids an attorney's expression of personal knowledge about any aspect of a case, unless testifying as a witness. But in the heat of advocacy and in reaction to unfair attacks by opposing counsel, it can be tempting to say things that shouldn't be said. Professionals who argue for a living sometimes have to suppress the instinctive retort and seek a judicial corrective, instead.

 "Prosecutors sometimes breach their duty to refrain from overzealous conduct by commenting on the defendant's guilt and offering unsolicited personal views on the evidence. ... Defense counsel, like the prosecutor, must refrain from interjecting personal beliefs into the presentation of his case. ... Defense counsel, like his adversary, must not be permitted to make unfounded and inflammatory attacks on the opposing advocate. ... A personal attack by the prosecutor on defense counsel is improper, and the duty to abstain from such attacks is obviously reciprocal. ... A trial judge should deal promptly with any breach by either counsel...by prompt action from the bench in the form of corrective instructions to the jury and, when necessary, an admonition to the errant advocate."

   US v. Young (1985) 470 US 1, 7-13 (finding error where the prosecutor reacted to personal defense attacks by responding in kind)

"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial."
   People v. Frye (1998) 18 Cal.4th 894, 971

Example: It was error for a DDA to tell the jury that when he himself was a defense attorney, he used and trusted the expert witnesses whose opinions were now offered in a competency hearing. People v. Turner (2004) 34 Cal.4th 406, 431-432.

"It is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it. ... Specifically, a prosecutor's reference to his or her own experience, comparing a defendant's case negatively to others the prosecutor knows about or has tried, is improper."
   People v. Huggins  (2006) 38 Cal.4th 175, 206-07

     "Next, a prosecutor may not, of course, vouch personally for the appropriateness of the verdict he urges. Nor, we believe, may he do so on behalf of the government." People v. Benson (1991) 52 Cal.3d 754, 795 (arguing for the death penalty).
However, the prosecutor can legitimately argue the inferences to be drawn from the evidence of record, People v. Boyette (2003) 29 Cal.4th 381, 424, and can attempt to persuade the jury to reach particular conclusions as to credibility, guilt and appropriate verdict based on the evidence. Frye, at 972; People v. Ayala (2000) 24 Cal.4th 243, 288 (death penalty properly urged).

BOTTOM LINE: Neither prosecutor nor defense counsel may attack the ethics or motives of opposing counsel, nor personally vouch for the credibility of their witnesses or the validity of their cases.


This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to insure currency after publication.  Local policies and procedures regarding application should be observed.

 

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