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  Tuesday, October 23, 2018  
The following caselaw summaries are provided as a courtesy to Los Angeles County Bar Association members by the Metropolitan News-Enterprise www.metnews.com. Summaries from the past 90 days are archived and searchable on the LACBA Web site at www.lacba.org/news-and-publications/daily-ebriefs.
Criminal Law and Procedure
The seizure of evidence in California pursuant to a Network Investigative Technique warrant issued by an out-of-state magistrate violated Federal Rule of Criminal Procedure 41(b) since the warrant authorized a search outside of the issuing magistrate judge's territorial authority, but the good faith exception to the exclusionary rule can allow for admission of the evidence. The NIT mechanism is not a "tracking device" for which out-of-district warrants are authorized by Rule 41(b). A warrant purportedly authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment, and a Rule 41 violation is a fundamental, constitutional error.

United States v. Henderson - filed Oct. 23, 2018
Cite as 2018 S.O.S. 17-10230
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Criminal Law and Procedure
A habeas corpus petitioner's double jeopardy challenge to the charges for which he was convicted is not rendered moot if the conviction is vacated. A court has the authority to convert a 28 U.S.C. Sec. 2254 petition into a Sec. 2241 petition when a petitioner's convictions are vacated during the pendency of the petition and the petitioner has become a pretrial detainee.

Dominguez v. Kernan - filed Oct. 23, 2018
Cite as 2018 S.O.S. 18-55209
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Aiding and abetting comes within the Alien Tort Statute's focus on torts committed in violation of the law of nations.

Doe v. Nestle, S.A. - filed Oct. 23, 2018
Cite as 2018 S.O.S. 17-55435
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Criminal Law and Procedure
An officer with adequate training and experience in performing the nystagmus test can testify about the significance of a defendant's performance on the test without additional expert testimony explaining the test.

People v. Randolph - filed Oct. 23, 2018, Fifth District
Cite as 2018 S.O.S. 5133
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Employment Law
The Dynamex "suffer or permit to work" standard for determining whether a worker is properly considered an employee or an independent contractor applies to wage order claims, and the Borello standard applies to non-wage-order claims.

Garcia v. Border Transportation Group, LLC - filed Oct. 22, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 5140
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Family Law
The relative placement preference under Welfare & Institutions Code Sec. 361.3 does not apply to relatives seeking placement of a child in continued foster care pursuant to Sec. 366.26(b)(7). A placement request by a relative after a permanency hearing is essentially a request to modify the child's permanency plan and must be heard under the statutory framework of Sec. 366.26 and Sec. 366.3. The Legislature favors a permanency plan of permanent placement with a fit and willing relative only if a child is in continued foster care and the preferred plans of adoption or guardianship are not available for the child. When a relative of a dependent child files a Sec. 388 petition requesting permanent placement of a child in continued foster care, the juvenile court should determine whether the petition makes a prima facie showing that the relative is fit and willing to care for the child and if so, set a post-permanency review hearing under Sec. 366.3. The procedures specified in Sec. 366.26 are the exclusive procedures for selecting a permanency plan for a dependent child.

In re Maria Q. - filed Oct. 23, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 5147
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