DUI Cops Target I-5, to San Diego California

California drunk driving lawyer / San Diego California DUI attorney news:

Labor Day update

California Highway Patrol Commissioner Mike Brown will patrol Interstate Highway 5 between Woodland and San Diego as part of the CHP's maximum enforcement effort over the Labor Day weekend.

The CHP said the top brass of the state police in Oregon and Washington will follow suit as part of a "Stay Alive on I-5" enforcement campaign.

Eighteen people died within 24 hours on California roads during the Fourth of July holiday, the CHP said, and the maximum enforcement this weekend is geared to ending the summer on a more positive note.

Last year 46 people died in collisions during the Labor Day weekend and 1,749 people were arrested for California DUI, the CHP said.

Napa CHP Capt. Mark Rasmussen said Commissioner Brown will have plenty of company over the weekend.

"He will be joined by up to 80 percent of all uniformed personnel from 6 p.m. on Friday through midnight on Monday," Rasmussen said.

There were no fatal crashed in the CHP's Napa jurisdiction last year during the Labor Day weekend, but 16 people were arrested for DUI, Officer Jaret Paulson said.

Honorary Badges not to be used if stopped for DUI in California

California drunk driving criminal defense attorney news

Push to stop badge-holders from displaying during California DUI investigation

SACRAMENTO California

The Attorney General's Office is reclaiming honorary police-type badges it gave its 1,200 California attorneys because the agency has declared the practice - common in local government - to be illegal.

In turn, local enforcement agencies are reviewing their policies, since the formal opinion by the Attorney General's Office says the badges - sometimes displayed by California DUI suspects during California DUI investigations - resemble those of cops, can be misused by recipients, who are not sworn law-enforcement officers.

A controversy arose after a legislative staffer for Assemblyman Mervyn Dymally, D-Compton, showed a legislative badge during a California DUI arrest.

http://abc.com

California DUI Lawyers to get Breath Machine's Source Code?

California DUI defense attorney query

California DUI courts gives, inter alia, a California DUI defendant:

(a) the opportunity to inspect the California DUI machine used to test one's breath,(b) the California DUI instrument's weekly calibration results, and
(c) the breath samples used in the California DUI machine calibrations.

The landmark Trombetta case (below) suggests the Supreme Court indicates that the trial judge must give us the source code in discovery so we can "utilize the data to impeach the machine's reliability"!

Trombetta case:

"...The constitutional duty of the States to preserve evidence is limited to evidence that might be expected to play a role in the suspect's defense. The evidence must possess an exculpatory value that was apparent before it was destroyed, and must also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions was met on the facts of this case...


Justice MARSHALL delivered the opinion of the Court.

[1] The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment. **2530United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); *481Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This case raises the question whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of defendants. In particular, the question presented is whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis tests to be admissible in criminal prosecutions.

I

The Omicron Intoxilyzer (Intoxilyzer) is a device used in California to measure the concentration of alcohol in the blood of motorists suspected of driving while under the influence of intoxicating liquor.FN1 The Intoxilyzer analyzes the suspect's breath. To operate the device, law enforcement officers follow these procedures:

FN1. Law enforcement agencies in California are obliged to use breath-analysis equipment that has been approved by the State's Department of Health. See 17 Cal.Admin.Code § 1221 (1976). The Department has approved a number of blood-alcohol testing devices employing a variety of technologies, see List of Instruments and Related Accessories Approved for Breath Alcohol Analysis (Dec. 20, 1979), reprinted in App. 238-247, of which the Omicron Intoxilyzer is the most popular model, see Brief for Petitioner 6, n. 6.

“ Prior to any test, the device is purged by pumping clean air through it until readings of 0.00 are obtained. The breath test requires a sample of ‘ alveolar’ (deep lung) air; to assure that such a sample is obtained, the subject is required to blow air into the intoxilyzer at a constant pressure for a period of several seconds. A breath sample is captured in the intoxilyzer's chamber and infrared light is used to sense the alcohol level. Two samples are taken, and the result of each is indicated on a printout card. The two tests must register within 0.02 of each other in order to be admissible in court. After each test, the chamber is purged with clean air and then *482 checked for a reading of zero alcohol. The machine is calibrated weekly, and the calibration results, as well as a portion of the calibration samples, are available to the defendant.” 142 Cal.App.3d 138, 141-142, 190 Cal.Rptr. 319, 321 (1983) (citations omitted).

In unrelated incidents in 1980 and 1981, each of the respondents in this case was stopped on suspicion of drunken driving on California highways. Each respondent submitted to an Intoxilyzer test.FN2 Each respondent registered a blood-alcohol concentration substantially higher than 0.10 percent. Under California law at that time, drivers with higher than 0.10 percent blood-alcohol concentrations were presumed to be intoxicated. Cal.Veh.Code Ann. § 23126(a)(3) (West 1971) (amended 1981). Respondents were all charged with driving while intoxicated in violation of Cal.Veh.Code Ann. § 23102 (West 1971) (amended 1981).

FN2. Under California law, drunken driving suspects are given the choice of having their blood-alcohol concentration determined by either a blood test, a urine test, or a breath test. Cal.Veh.Code Ann. § 13353 (West 1971 and Supp.1984). Suspects who refuse to submit to any test are liable to have their driving licenses suspended. Ibid.

Prior to trial in municipal court, each respondent filed a motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath. Although preservation of breath samples is technically feasible,FN3 California law enforcement**2531 officers*483 do not ordinarily preserve breath samples, and made no effort to do so in these cases. Respondents each claimed that, had a breath sample been preserved, he would have been able to impeach the incriminating Intoxilyzer results. All of respondents' motions to suppress were denied. Respondents Ward and Berry then submitted their cases on the police records and were convicted. Ward and Berry subsequently petitioned the California Court of Appeal for writs of habeas corpus. Respondents Trombetta and Cox did not submit to trial. They sought direct appeal from the Municipal Court orders, and their appeals were eventually transferred to the Court of Appeal to be consolidated with the Ward and Berry petitions.FN4

FN3. The California Department of Health has approved a device, known as an Intoximeter Field Crimper-Indium Tube Encapsulation Kit (Kit), which officers can use to preserve breath samples. App. 247. To use the Kit, a suspect must breathe directly into an indium tube, which preserves samples in three separate chambers. See 142 Cal.App.3d 138, 142, 190 Cal.Rptr. 319, 321 (1983). The breath trapped in each chamber can later be used to determine the suspect's blood-alcohol concentration through the use of a laboratory instrument known as a Gas Chromatograph Intoximeter, which has also been approved by the California Department of Health. App. 242-243. Because the suspect must breathe directly into the indium tube, the Kit cannot be used to preserve the same breath sample used in an Intoxilyzer test. See, supra, at 2530. Other devices, similar in function to the Kit, can be attached to an Intoxilyzer and used to collect the air that the Intoxilyzer purges, see Brief for Respondents 18-19, but none of these devices has yet received approval from the California Department of Health, see Reply Brief for Petitioner 3-4.

FN4. The California Court of Appeal expressed some doubt whether respondents Trombetta and Cox were entitled to appeal their suppression orders and ultimately ordered that their appeals be dismissed. 142 Cal.App.3d, at 140, 143, 190 Cal.Rptr., at 320, 323. The court, however, ruled on the merits of their claims and thereby exercised jurisdiction over their appeals. Id., at 144, 190 Cal.Rptr., at 323. As to Trombetta and Cox, the Court of Appeal decision was comparable to a judgment affirming a suppression order, which is reviewable in this Court under 28 U.S.C. § 1257(3). Cf., e.g., Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984).

The California Court of Appeal ruled in favor of respondents. After implicitly accepting that breath samples would be useful to respondents' defenses, the Court reviewed the available technologies and determined that the arresting officers had the capacity to preserve breath samples for respondents. 142 Cal.App.3d, at 141-142, 190 Cal.Rptr., at 320-321. Relying heavily on the California Supreme Court's decision in People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974), the Court of Appeal concluded: “ Due process demands simply that where evidence is collected by the state, as it is with the intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and *484 systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant.” 142 Cal.App.3d, at 144, 190 Cal.Rptr., at 323.FN5 The court granted respondents Ward **2532 and Berry new trials, and ordered that the Intoxilyzer results not be admitted as evidence against the other two respondents. The State unsuccessfully petitioned for certiorari in the California Supreme Court, and then petitioned for review in this Court. We granted certiorari, 464 U.S. 1037, 104 S.Ct. 696, 79 L.Ed.2d 163 (1984), and now reverse.

FN5. People v. Hitch involved another device used to measure blood-alcohol concentrations. With that device, a suspect's breath bubbles through a glass ampoule containing special chemicals that change colors depending on the amount of alcohol in the suspect's blood. 12 Cal.3d, at 644, 117 Cal.Rptr., at 12-13, 527 P.2d, at 363-364. In keeping with California procedures, law enforcement officials in Hitch discarded the ampoule after they had completed their testing, even though the ampoule might have been saved for retesting by the defendant. Relying on this Court's decisions in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 153-154, 92 S.Ct. 763, 765-766, 31 L.Ed.2d 104 (1972), the California Supreme Court concluded that the Due Process Clause is implicated when a State intentionally destroys evidence that might have proved favorable to a criminal defendant. 12 Cal.3d, at 645-650, 117 Cal.Rptr., at 13-19, 527 P.2d, at 364-370. The Hitch decision was noteworthy in that it extrapolated from Brady's disclosure requirement an additional constitutional duty on the part of prosecutors to preserve potentially exculpatory evidence. See Note, The Right to Independent Testing: A New Hitch in the Preservation of Evidence Doctrine, 75 Colum.L.Rev. 1355, 1364-1368 (1975); cf. United States v. Bryant, 142 U.S.App.D.C. 132, 141, 439 F.2d 642, 651 (1971) (Wright, J.) (Government must make “ ‘ earnest efforts' to preserve crucial materials and to find them once a discovery request is made” ).

For a number of years, there was uncertainty whether the California courts would extend the Hitch decision to the Intoxilyzer. In People v. Miller, 52 Cal.App.3d 666, 125 Cal.Rptr. 341 (1975), a Court of Appeal panel refused to extend Hitch because the Intoxilyzer does not reduce breath samples to a preservable form comparable to the ampoules created with the device involved in Hitch. The Court of Appeal in Trombetta declined to follow Miller, and reasoned that as long as there were other methods of preserving specimens (such as the Indium Tube Kit, see n. 3, supra), the State was obliged to preserve a breath sample equivalent to the one used in the Intoxilyzer. 142 Cal.App.3d, at 143-144, 190 Cal.Rptr., at 322-323.

*485 II

[2] Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed “ what might loosely be called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3447, 73 L.Ed.2d 1193 (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.

[3][4][5] The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264, 269-272, 79 S.Ct. 1173, 1177-1179, 3 L.Ed.2d 1217 (1959); see also Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87, 83 S.Ct., at 1196. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v. Agurs, 427 U.S., at 112, 96 S.Ct., at 2401. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

*486 Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government's possession. On a few occasions, we have suggested that the Federal Government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant's preparation for trial. For instance, in United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971), and in United States v. Lovasco, 431 U.S. 783, 795, n. 17, 97 S.Ct. 2044, 2051 n. 17, 52 L.Ed.2d 752 (1977), we intimated that a due process violation might occur if the Government delayed an indictment for so long that the defendant's ability to mount an effective defense was impaired. Similarly, in United States v. Valenzuela-Bernal, supra, we acknowledged that the Government could offend the Due Process Clause of the Fifth Amendment if, by deporting potential witnesses, it diminished a defendant's opportunity to put on an effective defense.FN6 458 U.S., at 873, 102 S.Ct., at 3450.

FN6. In related cases arising under the Sixth and Fourteenth Amendments, we have recognized that criminal defendants are entitled to call witnesses on their own behalf and to cross-examine witnesses who have testified on the government's behalf. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

**2533 We have, however, never squarely addressed the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuela-Bernal, supra, at 870, 102 S.Ct., at 3448. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can *487 grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing-as the California Court of Appeal did in this case-the State's most probative evidence.

One case in which we have discussed due process constraints on the Government's failure to preserve potentially exculpatory evidence is Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 18 U.S.C. § 1001. A key element of the Government's case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner's trial, the F.B.I. agents who prepared the investigatory report destroyed the preliminary notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner's defense, the Court ruled that their destruction did not rise to the level of constitutional violation:

“ If the agents' notes ... were made only for the purpose of transferring the data thereon ..., and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right.” Id., at 242, 82 S.Ct., at 308.

In many respects the instant case is reminiscent of Killian v. United States. To the extent that respondents' breath samples came into the possession of California authorities, it was for the limited purpose of providing raw data to the *488 Intoxilyzer.FN7 The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. As the petitioner in Killian wanted the agents' notes in order to impeach their final reports, respondents here seek the breath samples in order to challenge incriminating tests results produced with the Intoxilyzer.

FN7. We accept the California Court of Appeal's conclusion that the Intoxilyzer procedure brought respondents' breath samples into the possession of California officials. The capacity to preserve breath samples is equivalent to the actual possession of samples. See n. 5, supra.

[6] Given our precedents in this area, we cannot agree with the California Court of Appeal that the State's failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents' breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting “ in good faith and in accord with their normal practice.” Killian v. United States, supra, at 242, 82 S.Ct., at 308. The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.

**2534 [7] More importantly, California's policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense.FN8 *489 To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S., at 109-110, 96 S.Ct., at 2400, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case.

FN8. In our prosecutorial disclosure cases, we have imposed a similar requirement of materiality, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and have rejected the notion that a “ prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel.” Id., at 111, 96 S.Ct., at 2401; see also Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972) (“ We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case” ).

Although the preservation of breath samples might conceivably have contributed to respondents' defenses, a dispassionate review of the Intoxilyzer and the California testing procedures can only lead one to conclude that the chances are extremely low that preserved samples would have been exculpatory. The accuracy of the Intoxilyzer has been reviewed and certified by the California Department of Health.FN9 To protect suspects against machine malfunctions, the Department has developed test procedures that include two independent measurements (which must be closely correlated for the results to be admissible) bracketed by blank runs designed to ensure that the machine is purged of alcohol traces from previous tests. See supra, at 2530. In all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer's determination that the defendant had a high level of blood-alcohol concentration at the time of the test. Once the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory than exculpatory evidence.FN10

FN9. The Intoxilyzer has also passed accuracy requirements established by the National Highway Traffic Safety Administration of the Department of Transportation. See 38 Fed.Reg. 30459 (1973); A. Flores, Results of the First Semi-Annual Qualification Testing of Devices to Measure Breath Alcohol 10 (Dept. of Transportation 1975).

FN10. The materiality of breath samples is directly related to the reliability of the Intoxilyzer itself. The degree to which preserved samples are material depends on how reliable the Intoxilyzer is. This correlation suggests that a more direct constitutional attack might be made on the sufficiency of the evidence underlying the State's case. After all, if the Intoxilyzer were truly prone to erroneous readings, then Intoxilyzer results without more might be insufficient to establish guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

*490 Even if one were to assume that the Intoxilyzer results in this case were inaccurate and that breath samples might therefore have been exculpatory, it does not follow that respondents were without alternative means of demonstrating their innocence. Respondents and amici have identified only a limited number of ways in which an Intoxilyzer might malfunction: faulty calibration, extraneous interference with machine measurements, and operator error. See Brief for Respondents 32-34; Brief for California Public Defender's Association et al. as Amici Curiae 25-40. Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine's weekly calibration results and the breath samples used in the calibrations. See supra, at 2530. Respondents could have utilized these data to impeach the machine's reliability. As to improper measurements, the parties have **2535 identified only two sources capable of interfering with test results: radio waves and chemicals that appear in the blood of those who are dieting. For defendants whose test results might have been affected by either of these factors, it remains possible to introduce at trial evidence demonstrating that the defendant was dieting at the time of the test or that the test was conducted near a source of radio waves. Finally, as to operator error, the defendant retains the right to cross-examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the factfinder whether the test was properly administered. FN11

FN11. Respondents could also have protected themselves from erroneous on-the-scene testing by electing to submit to urine or blood tests, see n. 2, supra, because the State automatically would have preserved urine and blood samples for retesting by respondents. Respondents, however, were not informed of the difference between the various testing procedures when they were asked to select among the three available methods of testing blood-alcohol concentrations. But see Cal.Veh.Code Ann. § 13353.5 (West 1971) (enacted in 1983) (requiring suspects to be informed that samples will be retained only in urine and blood tests). To the extent that this and other access-to-evidence cases turn on the underlying fairness of governmental procedures, it would be anomalous to permit the State to justify its actions by relying on procedural alternatives that were available, but unknown to the defendant. Similarly, it is irrelevant to our inquiry that California permits an accused drunken driver to have a second blood-alcohol test conducted by independent experts, since there is no evidence on this record that respondents were aware of this alternative.

*491 III

[8][9] We conclude, therefore, that the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial.FN12 Accordingly, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

FN12. State courts and legislatures, of course, remain free to adopt more rigorous safeguards governing the admissibility of scientific evidence than those imposed by the Federal Constitution. See, e.g., Lauderdale v. State, 548 P.2d 376 (Alaska 1976); City of Lodi v. Hine, 107 Wis.2d 118, 318 N.W.2d 383 (1982).

It is so ordered.

Justice O'CONNOR, concurring.

Rules concerning preservation of evidence are generally matters of state, not federal constitutional law. See United States v. Augenblick, 393 U.S. 348, 352-353, 89 S.Ct. 528, 531-532, 21 L.Ed.2d 537 (1969). The failure to preserve breath samples does not render a prosecution fundamentally unfair, and thus cannot render breath-analysis tests inadmissible as evidence against the accused. Id., at 356, 89 S.Ct., at 533. Similarly, the failure to employ alternative methods of testing blood-alcohol concentrations is of no due *492 process concern, both because persons are presumed to know their rights under the law and because the existence of tests not used in no way affects the fundamental fairness of the convictions actually obtained. I understand the Court to state no more than these well-settled propositions. Accordingly, I join both its opinion and judgment.

U.S.,1984 - California v. Trombetta 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413


California DUI criminal defense attorneys may use this case to obtain the source code for California DUI breath test machines.

California's DUI Checkpoint & DUI Enforement to Kick Off

California Drunk Driving Defense Attorney news

Six o'clock Friday evening is the official start of the Labor Day weekend and a number of law enforcement agencies will be on the lookout for those who are DUI, drunk driving or driving-under-the-influence.

As part of the state Office of Traffic Safety's weekend crackdown on California drunk drivers, the Sonora Police Department, with an assist from the Jamestown office of the Highway Patrol, will establish a California DUI checkpoint from 8pm until 2am Saturday.

The California DUI theme of the weekend throughout the state; "Over the Limit, Under Arrest." The penalty for a first time DUI offense is approximately $10,000.

California DUI defense lawyers anticipate many California DUI arrests.

Successful DUI Breath Test Machine Attacks - Source Code update

Breaking Californai DUI defense attorney news - Breathalyzer attacks

SOURCE CODE OF THE DRAEGER ALCOTEST 7110 MKIII-C

After two years of attempting to get the computer based source code for the Alcotest 7110 MKIII-C, premier DUI defense attorneys in State v. Chun were successful in obtaining the code, and had it analyzed by Base One Technologies, Inc.

By making itself a party to the litigation after the oral arguments in April, Draeger subjected itself to the Supreme Court's directive that Draeger ultimately provide the source code to the defendants' software analysis house, Base One.

Despite Draeger's protestations that the code was proprietary, Base One found that the code consists mostly of general algorithms arranged in a manner to implement the breath testing sequence. "That is, the code is not really unique or proprietary. "

In a report released August 28, 2007, Base One determined:

As a matter of public safety, the Alcotest should be suspended from use until the software has been reviewed against an acceptable set of software development standards, and recoded and tested if necessary. An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.

Draeger reviewed the code, as well, through its software house, SysTest Labs, which agreed with Base One, that the patchwork code that makes up the 7110 is not written well, nor is it written to any defined coding standard. SysTest said, "The Alcotest NJ3.11 source code appears to have evolved over numerous transitions and versioning, which is responsible for cyclomatic complexity."

The best thing SysTest said about the machine was, "The translation from German to English of the comments within the major components shows the logical intent of the programmers to produce reliable and valid test results. SysTest was unable to find any evidence of any intention to mis-direct or re-direct the test results or report anything other than valid results."

SysTest only looked for "mal-ware", not for functioning of the code.

Base One, however, did an extensive evaluation, finding 19,400 potential errors in the code.

Among its findings are:

1. The Alcotest Software Would Not Pass U.S. Industry Standards for Software Development and Testing: The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete "white box" and "black box" testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the "trial and error" method. Several sections are marked as "temporary, for now". Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style.

The software development life-cycle concept is governed by one of the nationally and internationally recognized development standards to prevent defects from entering the software during the design process, and to find and eliminate more defects as the software is coded, tested, and released to the field. This concept of software development using standards requires extensive and meticulous supporting data, and notations in source files, and a configuration management system. None of this methodology is evident in the Alcotest code. Further, the decision method of how to allocate the architecture and assignment of tasks does not match any of the software standards. This further substantiates that software development standards were not used to verify or test the software, including the ISO 9000 family of standards.

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Federal Drug Administration (FDA), as well as commercial standards used in devices for public safety. This means the Alcotest would not be considered for military applications such as analyzing breath alcohol for fighter pilots. If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards.

2. Readings are Not Averaged Correctly: When the software takes a series of readings, it first averages the first two readings. Then, it averages the third reading with the average just computed. Then the fourth reading is averaged with the new average, and so on. There is no comment or note detailing a reason for this calculation, which would cause the first reading to have more weight than successive readings. Nonetheless, the comments say that the values should be averaged, and they are not.

3. Results Limited to Small, Discrete Values: The A/D converters measuring the IR readings and the fuel cell readings can produce values between 0 and 4095. However, the software divides the final average(s) by 256, meaning the final result can only have 16 values to represent the five-volt range (or less), or, represent the range of alcohol readings possible. This is a loss of precision in the data; of a possible twelve bits of information, only four bits are used. Further, because of an attribute in the IR calculations, the result value is further divided in half. This means that only 8 values are possible for the IR detection, and this is compared against the 16 values of the fuel cell.

4. Catastrophic Error Detection Is Disabled: An interrupt that detects that the microprocessor is trying to execute an illegal instruction is disabled, meaning that the Alcotest software could appear to run correctly while executing wild branches or invalid code for a period of time. Other interrupts ignored are the Computer Operating Property (a watchdog timer), and the Software Interrupt.

5. Implemented Design Lacks Positive Feedback: The software controls electrical lines, which switch devices on and off, such as an air pump, infrared source, etc. The design does not provide a monitoring sensory line (loop back) for the software to detect that the device state actually changed. This means that the software assumes the change in state is always correct, but it cannot verify the action.

6. Diagnostics Adjust/Substitute Data Readings: The diagnostic routines for the Analog to Digital (A/D) Converters will substitute arbitrary, favorable readings for the measured device if the measurement is out of range, either too high or too low. The values will be forced to a high or low limit, respectively. This error condition is suppressed unless it occurs frequently enough.

7. Flow Measurements Adjusted/Substitute d: The software takes an airflow measurement at power-up, and presumes this value is the "zero line" or baseline measurement for subsequent calculations. No quality check or reasonableness test is done on this measurement. Subsequent calculations are compared against this baseline measurement, and the difference is the change in airflow. If the airflow is slower than the baseline, this would result in a negative flow measurement, so the software simply adjusts the negative reading to a positive value.

If the measurement of a later baseline is taken, and the measurement is declared in error by the software, the software simply uses the last "good" baseline, and continues to read flow values from a declared erroneous measurement device.

8. Range Limits Are Substituted for Incorrect Average Measurements: In a manner similar to the diagnostics, voltage values are read and averaged into a value. If the resulting average is a value out of range, the averaged value is changed to the low or high limit value. If the value is out of range after averaging, this should indicate a serious problem, such as a failed A/D converter.

9. Code Does Not Detect Data Variations

10. Error Detection Logic: The software design detects measurement errors, but ignores these errors unless they occur a consecutive total number of times. For example, in the airflow measuring logic, if a flow measurement is above the prescribed maximum value, it is called an error, but this error must occur 32 consecutive times for the error to be handled and displayed. This means that the error could occur 31 times, then appear within range once, then appear 31 times, etc., and never be reported. The software uses different criteria values (e.g. 10 instead of 32) for the measurements of the various Alcotest components, but the error detection logic is the same as described.

11. Timing Problems: The design of the code is to run in timed units of 8.192 milliseconds, by means of an interrupt signal to a handler, which then signals the main program control that it can continue to the next segment. The interrupt goes off every 8.192 ms, not 8.192 ms from my latest request for a time delay. The more often the code calls a single 8.192 ms interrupt, the more inaccurate the software timing can be, because the requests from the mainline software instructions are out of phase with the continuously operating timer interrupt routine.

12. Defects In Three Out Of Five Lines Of Code: A universal tool in the open-source community, called Lint, was used to analyze the source code written in C. This program uncovers a range of problems from minor to serious problems that can halt or cripple the program operation. This Lint program has been used for many years. It uncovered that there are 3 error lines for every 5 lines of source code in C.

While Draeger's counsel claims that the "The Alcotest [7110] is the single best microprocessor- driven evidential breath tester on the market", Draeger has already replaced the antiquated 7110 with a newer Windows® based version, the 9510. The computer code in the 7110 is written on an Atari®-styled chip, utilizing fifteen to twenty year old technology in 1970s coding style.

There is no doubt that the Supreme Court should declare this machine to be unreliable. If this happens, based on an agreement entered into over 4 years ago between the State and Draeger, the taxpayers of New Jersey can recover the almost $7 million spent on these machines.

The premier DUI criminal defense lawyer returns to court on September 17th to hash this out, unless the Special Master decides the issues without a hearing.

For those California jurisdictions using the Draeger, California DUI defense lawyers prepare.

How You Can Find a Qualified California DUI Attorney

How to find a qualified San Diego California DUI Defense Lawyer?!

Different types of lawyers handle San Diego California DUI cases, including public defenders, general practitioners, California criminal defense lawyers, California criminal defense attorneys, and DUI Specialists.

A San Diego County California public defender is a California attorney provided at little to provide defense services to people who financially are unable to hire a private San Diego California DUI attorney. Most San Diego County California Districts generally do not offer public defenders services unless you are unemployed, significantly under-employed and/or have no assets.

Some practical questions to begin asking when looking for a California DUI criminal defense attorney are:

What are his or her California Drunk Driving defense attorney's qualifications?

Is he or she a Specialist member of the California DUI Lawyers Association?

Is he or she a member of the National College for DUI Defense?

Whether or not you ultimately end up hiring a true California DUI Defense attorney, it is a smart idea to speak to a California DUI Specialist attorney in this highly complex field.

You can read more -Why use San Diego County's Specialist in California DUI / Drunk Driving and DMV Law - http://www.sandiegoduilawyer.com/why.html

Why not try a Free California DUI / DMV Evaluation at http://www.sandiegodrunkdrivingattorney.net/survey.html

Restitution to California DUI accident victims

California DUI Criminal Defense Attorneys' clients may have to pay restitution in a California DUI case even if restitution was not ordered.

California DUI Prosecutors, California DUI Victims and California DUI Courts can correct an invalid California DUI sentence.

If the original California DUI order did not include restitution to a California DUI victim, or failed to reserve jurisdiction, no compelling or extraordinary reasons need be shown to correct.

California DUI criminal defense lawyers need to be ready to deal with this possible issue in every California DUI accident case.

Major California DUI Crackdown this weekend

California DUI Criminal Defense Attorney news

California's DUI crackdown is major because Labor Day, a holiday celebrated throughout California with parties and parades, has unfortunately become notorious as a day when thousands of drivers make the deadly decision to drive drunk in California.

Mothers Against Drunk Driving (MADD) and California law enforcement agencies today kicked off a major drunk driving crackdown as part of the National Highway Traffic Safety Administration's (NHTSA) national crackdown: "Drunk Driving. Over the Limit. Under Arrest."

Last year in California, 25 people were killed over the Labor Day weekend in California DUI accidents.

MADD San Diego California is teaming up with NHTSA, the California Office of Traffic Safety (CA OTS), the California Highway Patrol (CHP) Border Division and Avoid the 14 to implement tough enforcement of drunk driving laws over Labor Day Weekend. Avoid the 14, composed of the 14 law enforcement agencies in San Diego County, California will be conducting extended-hour California sobriety checkpoints and California DUI saturation patrols over the holiday weekend, joining more than 350 California DUI law enforcement agencies across the state who are stepping up their California drunk driving arrest efforts.

To launch these enforcement activities and announce new state data, California MADD and its California DUI law enforcement partners are holding a press conference at the California CHP Border Division office where key players on the state, local and national level will be discussing the California DUI crackdown and its goals. The CHP Border Division will also be offering ride-alongs during holiday crackdown activities to interested members of the media.

California alcohol-related traffic deaths are higher than at any time since 1997. Preliminary 2006 data from the California Highway Patrol show that in San Diego County alone, 115 were killed in 2006 due to alcohol-related crashes, while 3,052 were injured. Statewide, 1,276 Californians were killed in 2006 in drunk driving crashes in which the driver had a blood alcohol concentration (BAC) of .08 or higher. This past year, nearly 13,500 people across the nation were killed in drunk driving crashes in which the driver had a BAC of .08 or higher, according to the Fatality Analysis Reporting System (FARS) data from NHTSA.

It is important that we use all the California DUI tools and California drunk driving resources available to stop these senseless deaths and to send a clear reminder to California DUI drivers: If you are caught driving drunk this Labor Day weekend, you will be arrested for a California DUI. No exceptions. No excuses, warns the California DUI law agencies.


"California Drunk driving is one of our nation's deadliest crimes and we are working with our partners to eliminate it from our roadways," said NHTSA Deputy Jim Ports. "We need to come up with new solutions to solve the problem that address fatality numbers that have been too stagnant for too long."

Research has shown that highly publicized, highly visible and frequent California DUI sobriety checkpoints reduce alcohol-related crashes and fatalities by an average of 20 percent. Drunk Driving. Over the Limit. Under Arrest. combines the mobilization of thousands of DUI law enforcement agencies in all 50 states with an $11 million national advertising campaign to deliver the message that if you drive drunk, you will be arrested.

High visibility enforcement is one of the four components of California MADD's Campaign to Eliminate California Drunk Driving. The other elements include: mandatory ignition interlocks for all convicted California drunk drivers, development of advanced vehicle technology to detect and stop California drunk drivers, and mobilization of grassroots support.

"There's just no excuse for driving drunk," said Pat Hodgkin of MADD San Diego California. "MADD's goal is to make it literally impossible for people to drive drunk.

The vision behind the Campaign to Eliminate California Drunk Driving is to use new technology, enforcement and community involvement to ultimately prevent a California driver with a BAC of .08 or higher from operating a vehicle. Together with California DUI law enforcement, we are diligently working toward a future without drunk driving crimes." And California DUI criminal defense attorneys protect the rights of California citizens. For info on California DUI defense, go to http://www.SanDiegoDrunkDrivingAttorney.net .

San Diego behind LA County for most Felony DUI's

California DUI criminal defense attorney news

California DUI law-enforcement agencies warned they will be out in large numbers to stop California motorists driving under the influence.

Avoid the 25, a group of law-enforcement agencies from around San Bernardino County, will be cracking down on California drunk driving motorists during Labor Day weekend.

California DUI arrests have increased 20 percent between 2005 and 2006.

California DUI cops plan to conduct 17 California DUI sobriety checkpoints, 55 California DUI patrols and at least three operations targeting underage drinking.

Their county ranked fourth in the state for California DUI arrests in 2006, with 12,343 arrests overall.

For California felony DUI arrests alone, the county came in third behind San Diego California and Los Angeles counties with 441 arrests.

California DUI drivers can be charged with a California felony DUI if they cause an injury in a crash or have been convicted of multiple California DUIs.

http://www.sandiegoduihelp.com/duiblog/index.html

California DUI folks to want the "Lohan" DUI sentence?

California DUI attorney news

Early jail release for California DUI celebrities

Many within the legal system say Lohan and Richie were treated no differently from other drug and alcohol cases that are handled by California DUI defense lawyers through the California DUI / Drug courts.

In Los Angeles County, jail overcrowding requires the Sheriff to use the facilities he has for more serious offenders. In addition to Richie, more than 50 women serving time on similar charges were released Thursday.

There are too many bad California DUI girls and not enough California jail cells. People in the California DUI attorney system has known what's going on, that people do not necessarily serve much custody time for a California DUI. It's a big surprise for the public.

Others arrested for a California DUI may tell their California DUI criminal defense attorneys: I want the "Lohan sentence."

California DUI Prosecutors may respond by overcharging California drunk driving cases to enable judges to give longer California DUI jail sentences.

Lohan could have been charged with a felony but that her plea bargain involved only misdemeanors.

Richie was a second offender charged with California DUI - drugs.

Both Lohan and Richie did better than Paris Hilton, who served some three weeks in jail for a probation violation after pleading no contest to alcohol-related reckless driving.

Paris Hilton obviously was someone a judge knew he could use as an example.

Actor Lane Garrison pleaded guilty to vehicular manslaughter and California drunk driving in a crash that killed a teenage passenger, a case that highlights the possible consequences of a very bad California DUI case.

Garrison faces a maximum sentence of six years and eight months in prison. Los Angeles County prosecutors have asked for four years and eight months. His California DUI defense lawyer will ask for less.

http://www.sandiegoduilawyer.com/blog.html

Recent California DUI Lawyers' Celebrity drunk driving news

California drunk driving defense attorney Hollywood update:

California DUI stars Lindsay Lohan and Nicole Richie have resurrected the initial Paris Hilton question of whether fame provides a soft landing for Hollywood California stars.

On the same day, Lohan got a 1 day jail sentence for California drunk driving and being under the influence of cocaine, Richie served the better part of a 4 day jail sentence for California DUI in 82 minutes - but she reportedly never saw the inside of a jail cell.

Were the slim California DUI punishments the benefit of fame? The answer is yes and no. Their sentences were consistent with others that occur outside the spotlight, according to California DUI attorney experts.

California drunk driving defense lawyers helped them evade any stronger punishment.

The cost was high in negative California DUI lawyer headlines, California DUI defense attorney bills and possible career consequences.

Yet another member of the young Hollywood set has been busted for a California DUI after driving the wrong way down a one-way street in the early morning hours.

Austin Nichols, the TV actor whose best known credit may be as Jake Gyllenhaal's favored workout buddy, was busted on suspicion of drunk driving in Jackson, Michigan.

The John from Cincinnati star was given a DUI Breathalyzer test.

Nichols' blood-alcohol level allegedly measured in at 0.10 percent, barely above the 0.08 percent legal limit. Should the onetime Deadwood actor be convicted of the DUI misdemeanor charge, he would not only join a growing number of celebrities who received a DUI but would face up to 93 days in jail, a $500 fine and plenty of community service.

In addition to the late series, Nichols has also appeared in the film Wimbledon opposite Kirsten Dunst and starred alongside Gyllenhaal in The Day After Tomorrow.

http://www.SanDiegoDrunkDrivingAttorney.net

Lindsay Lohan's California DUI sentence

California DUI defense lawyer news

Lindsay Lohan's California DUI sentence is more of a Nicole Richie than a Paris Hilton.

Although Lohan could have faced up to three years behind prison bars stemming from her dual California DUI arrests in recent months, in the end she will serve just one day in a county jail after pleading no contest Thursday to five misdemeanor drunken-driving and cocaine charges.

Aside from her day trip to lockup, Lohan was sentenced to 10 days of community service, ordered to complete drug treatment and an 18-month alcohol-education program, and put on three years' probation, during which time she's forbidden from associating with drug users.

The 21-year-old tabloid princess was not required to fly in from her Utah rehab retreat to be in the Beverly Hills courtroom. As part of the sentence handed down by Los Angeles County Superior Court Judge H. Chester Horn Jr., Lohan must also attend a three-day county coroner program in which she'll visit a morgue and talk to victims of California drunken drivers.

Lohan's California DUI criminal defense lawyer, Blair Berk (who was in a Malibu courtroom earlier Thursday representing Mel Gibson in his California DUI case), struck the California DUI plea bargain hours after the District Attorney's Office filed seven misdemeanor—but no felony—counts against the rehabbing actress.

In all, Lohan pleaded no contest to two counts each of driving with a blood-alcohol level over 0.08 percent and being under the influence of cocaine, along with one count of reckless driving. Prosecutors agreed to drop two additional counts of California DUI.

She could have faced a maximum of one year in jail if convicted of the charges. She must serve her time and complete her treament by the end of January.

Lohan could face 120 days in jail for another DUI.

California DUI Cops can't stop you for playing music too loud

California DUI Defense Attorney news: Driving with music too loud case thrown out!

Many times a California DUI client tells his California drunk driving lawyer that the California DUI cop pulled him over for playing his car stereo too loud. Well, that ok. And the California DUI cops cannot pull him over that anymore. See California drunk driving attorney case below.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ü No. 06-30368 Plaintiff-Appellee,
v. ý D.C. No. CR-05-00074-BLW
JUSTIN WELLS GRIGG, OPINION Defendant-Appellant. þ
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
March 6, 2007—Portland, Oregon
Filed August 22, 2007
Before: Ronald M. Gould, Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Gould
10245
COUNSEL
Thomas Monaghan, Federal Defenders of Eastern Washington
and Idaho, Boise, Idaho, for defendant-appellant Justin
Wells Grigg.
Aaron N. Lucoff, Assistant United States Attorney, Boise,
Idaho, for plaintiff-appellee the United States.
OPINION
GOULD, Circuit Judge:
Appellant-Defendant Justin Wells Grigg appeals the district
court’s denial of his motion to suppress an unregistered automatic
firearm that police officers discovered while conducting
an investigative stop of Grigg pursuant to a citizen’s complaint
that Grigg had been playing his car stereo at an excessive
volume earlier in the day. We have jurisdiction under 28
U.S.C. § 1291. We reverse the district court’s denial of the
motion to suppress the firearm and post-arrest statements and
remand for further proceedings.
I
On April 12, 2005, a grand jury returned a one-count
indictment in the United States District Court for the District
10248 UNITED STATES v. GRIGG
of Idaho, charging Grigg with possession of an unregistered
firearm, an SKS automatic rifle (machine gun), in violation of
26 U.S.C. § 5861(d). Police officers in Nampa, Idaho had discovered
the weapon during an investigatory stop that occurred
because they suspected Grigg of playing his car stereo at an
excessive volume earlier in the day in violation of a local
noise ordinance.
On August 15, 2005, Grigg filed a motion to suppress the
firearm and statements that he made after the stop. Grigg
claimed that the Nampa police violated his Fourth Amendment
rights by conducting a search of his vehicle solely on the
basis of suspicion that he had committed a misdemeanor by
playing his car stereo at excessive volume earlier in the day.
On September 19 and 20, 2005, the district court held a hearing
on Grigg’s motion to suppress. The following facts were
established:
On September 21, 2004, a Nampa resident, Jeffrey Harmel,
called the police to report that a car had driven by his house
at 710 Dufur Street with its car stereo playing very loudly.
Officers Oren McGuire and Mike Roeder of the Nampa
Police Department responded independently. Upon Officer
McGuire’s arrival, Harmel said that “kids” in the neighborhood
had been harassing him with loud music for “years,” and
that he had “caught” the car in question — a Mercury Cougar,
the driver of which was Grigg — “booming” music several
times in the preceding days, and that on one occasion he had
called the police to file a complaint. Although Harmel testified
that he did not know whether the police responded to the
previous complaint, according to Officer McGuire’s testimony,
the police had given Grigg a prior verbal warning.
While filling out a formal citizen complaint, Harmel
pointed down the street to where the offending car was parked
in front of a house at 1800 East Dewey Street. During this
conversation, about one minute after Officer McGuire’s
arrival, Grigg got in the Cougar and drove back toward Har-
UNITED STATES v. GRIGG 10249
mel and Officer McGuire. As Grigg passed, no music could
be heard and he was driving lawfully, but Harmel identified
Grigg as the subject of his complaint. At that point, although
Officer McGuire had not ascertained Grigg’s identity or
investigated possible prior complaints, McGuire told Officer
Roeder, who had arrived, to stop the car to inquire about
excessive noise, determine the driver’s identity, and serve the
driver with a citation and summons. Officer McGuire then
completed the complaint form, which Harmel signed, leaving
blank the unknown personal information about the subject of
the complaint.
On Officer McGuire’s instruction, Officer Roeder spotted
the Cougar and trailed Grigg. Roeder activated his overhead
lights, and Grigg delayed a few seconds before pulling into a
driveway. After the stop, Grigg started to get out of his car,
but Officer Roeder ordered him back inside. As Officer
Roeder approached, Grigg volunteered that he had a “hunting
rifle” inside the car that he was taking to get “fixed.” Officer
Roeder then observed the SKS rifle on the passenger seat
along with ammunition and .380 caliber handgun shells.
Roeder then initiated a pat down search and arrested Grigg
after finding concealed brass knuckles.1
At the suppression hearing, Officer McGuire testified that
he did not intend to arrest Grigg for the suspected misdemeanor
noise violation because under Idaho law he could not
arrest a suspect for a misdemeanor not committed in his presence.
2 Officer McGuire testified that he did not inquire with
1On a motion in limine, the district court later excluded the .380 caliber
shells. Although it did not on that motion exclude the brass knuckles, the
record contains no indication that the government ever moved to admit
them.
2See Idaho Code Ann. § 19-603 (2007) (“When peace officer may
arrest”) (“A peace officer may make an arrest in obedience to a warrant
delivered to him, or may, without a warrant, arrest a person: [1] For a public
offense committed or attempted in his presence; [2] When a person
arrested has committed a felony, although not in his presence; [3] When
a felony has in fact been committed and he has reasonable cause for
believing the person arrested to have committed it . . . .”).
10250 UNITED STATES v. GRIGG
dispatch to check whether in making the prior complaint Harmel
had given the license number of the Cougar. Officer
McGuire testified further that under Nampa Police Department
protocol, a record would exist of Harmel’s previous
complaint, including any prior contact with Grigg and any
verbal warning he received. Officer McGuire testified that
any specific information included in the log, such as a subject’s
name and address, would have been provided by the
previous complainant. Officer McGuire also testified that it
would have been time-consuming to attempt to bring up the
log on his patrol car computer, and that he did not want to
“bother” dispatch with a noise complaint, which “is not that
big of a deal.” Officer McGuire further testified that he
decided to stop the Cougar because all the parties involved
were present. Addressing whether there was an alternate
method of identifying the driver, Officer McGuire stated that
a call to the dispatch was unreliable because the name of the
driver could have been provided only by Harmel, who did not
know Grigg’s name. Officer McGuire conceded, however,
that absent the ability to stop the Cougar directly, a preferred
method would have been to return to the address where the
Cougar was parked at 1800 East Dewey Street and ask about
the driver’s identity.
The district court determined that (1) the investigating officers
did not know the identity or residence of the driver of the
Cougar, (2) the driver was in the process of driving away
before the stop, and (3) the officers sought to stop the driver
to gain more information about Harmel’s noise complaint and
identify the driver. The district court rejected the government’s
proffered alternate theories for the stop: 1) it was not
to undertake a citizen’s arrest because Harmel had not
expressed a desire that the driver be arrested; 2) it was not an
attempt to serve Harmel’s complaint and a summons on Grigg
because Officer McGuire was still in the process of completing
the complaint when the Cougar drove past; 3) and the
government did not meet its evidentiary burden that Grigg
played loud music in the presence of Officer Roeder, which
UNITED STATES v. GRIGG 10251
would have provided probable cause to stop Grigg for a present
noise violation. The district court concluded from these
findings that Officers McGuire and Roeder conducted an
investigative stop under Terry v. Ohio, 392 U.S. 1 (1968),
based on a citizen complaint to gather information on the
alleged completed noise violation.
Because the criminal conduct that the officers were investigating
had already occurred, the district court held that United
States v. Hensley, 469 U.S. 221 (1985), applied even though
that case concerned an investigatory stop based on reasonable
suspicion that the defendant had previously committed a felony
(armed robbery). See id. at 223, 229. In conducting the
balancing test set forth in Hensley between the law enforcement
interest in crime prevention and an individual’s interest
in personal security from governmental intrusion, see id. at
228, the district court found important that the officers did not
know the identity of Grigg and had no certain way of locating
him when faced with the likelihood that the driver of the Cougar
had committed an excessive noise violation and was leaving
the area. The district court rejected Grigg’s arguments that
the police had other less intrusive means of identifying him —
such as requesting specific information from the police logs
on Harmel’s previous complaint or checking the residence
where Grigg had parked his car — due to the unreliability of
these sources of information. Although commenting that it
was “a very, very close call,” the district court held in favor
of the government that the stop was a reasonable method of
resolving the noise complaint.
After the district court denied Grigg’s motion to suppress,
the case proceeded to trial, and on November 18, 2005, a jury
found Grigg guilty of violating 26 U.S.C. § 5861(d) for knowingly
possessing the unregistered SKS automatic rifle. Grigg
timely appealed.3
3In this appeal, Grigg challenges the district court’s denial of his motion
to suppress the firearm and other evidence, and also contends that the trial
verdict cannot stand because of prosecutorial misconduct.
10252 UNITED STATES v. GRIGG
II
The reasonableness of an investigatory stop is reviewed de
novo. See United States v. $109,179 in U.S. Currency, 228
F.3d 1080, 1083-84 (9th Cir. 2000). Such a stop must be
based on reasonable suspicion under the totality of the circumstances.
United States v. Fernandez-Castillo, 324 F.3d
1114, 1117 (9th Cir. 2003). Any underlying factual findings
are reviewed for clear error. United States v. Colin, 314 F.3d
439, 442 (9th Cir. 2002).
III
Most of the constitutional principles at play in this appeal
are well established. The Fourth Amendment protects the
“right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures.”
U.S. Const. Amend. IV. Under Terry and its progeny,
police may, consistent with the Fourth Amendment, stop persons
in the absence of probable cause under limited circumstances.
See Dunaway v. New York, 442 U.S. 200, 207-11
(1979). In particular, law enforcement officers may briefly
stop a moving automobile to investigate a reasonable suspicion
that its occupants are involved in criminal activity. See
United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975);
United States v. Hartz, 458 F.3d 1011, 1017 (9th Cir. 2006);
United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121-
22 (9th Cir. 2002). However, the governmental interest in
investigating possible criminal conduct based on an officer’s
reasonable suspicion may be outweighed by the Fourth
Amendment interest of the driver in remaining secure from
the intrusion. See Delaware v. Prouse, 440 U.S. 648, 654-55
(1979).
[1] An investigatory stop can be undertaken to prevent
ongoing or imminent crime, i.e., when a police officer “observes
unusual conduct which leads him reasonably to conclude
in light of his experience that criminal activity may be
UNITED STATES v. GRIGG 10253
afoot.” Terry, 392 U.S. at 30; see also United States v. Arvizu,
534 U.S. 266, 273 (2002). Further, in Hensley, the United
States Supreme Court held that “if police have a reasonable
suspicion, grounded in specific and articulable facts, that a
person they encounter was involved in or is wanted in connection
with a completed felony, then a Terry stop may be made
to investigate that suspicion.” 469 U.S. at 229 (emphasis
added). The Hensley court explicitly confined its analysis to
the felony context, leaving open the question whether the rule
could be extended to “all past crimes, however serious,” i.e.,
misdemeanors. Id. Thus the Supreme Court’s Hensley decision
did not answer the issue tendered by this appeal. Grigg’s
challenge to the district court’s extension of Hensley raises an
issue of first impression for us.4
A
In Hensley, the investigative stop arose after two armed
men robbed a tavern in the Cincinnati suburb of St. Bernard,
Ohio, and the police department there learned that Hensley
was the getaway driver. 469 U.S. at 223. The St. Bernard
police department issued a “wanted flyer” that described
Hensley and the date and location of the alleged robbery, with
a request that other police departments in the Cincinnati metropolitan
area pick up and hold Hensley in the event that he
were located. Id. The flyer warned that Hensley should be
considered armed and dangerous. Id. Twelve days after the
robbery, police officers in Covington, Kentucky, who were
familiar with Hensley, noticed him in the driver’s seat of a
Cadillac and notified dispatch. Id. at 223-24. Another pair of
Covington officers heard the call, radioed that they had seen
the wanted flyer about Hensley, and one of the officers drove
4Of our sister circuits, only the Sixth Circuit has addressed this issue,
stating that the Hensley rule did not apply to past completed misdemeanors.
See Gaddis v. Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004)
(“Police may . . . make a stop when they have reasonable suspicion of a
completed felony, though not of a mere completed misdemeanor.”).
10254 UNITED STATES v. GRIGG
to an apartment where Hensley was known to stay. Id. at 224.
When the Cadillac was again spotted, one of the Covington
officers pulled over Hensley and, during the stop, discovered
a weapon. Id. Hensley was arrested for being a convicted
felon in possession of a firearm. Id. at 225.
Upholding the district court’s denial of Hensley’s motion to
suppress the firearm, the Supreme Court employed a balancing
test to weigh “the nature and quality of the intrusion on
personal security against the importance of the governmental
interests alleged to justify the intrusion.” Id. at 225, 228.
Acknowledging the differences between investigating past
criminal conduct and detecting ongoing or imminent crime,
the Supreme Court recognized that the exigencies involved in
crime prevention are attenuated in the context of completed
past crimes:
A stop to investigate an already completed crime
does not necessarily promote the interest of crime
prevention as directly as a stop to investigate suspected
ongoing criminal activity. Similarly, the exigent
circumstances which require a police officer to
step in before a crime is committed or completed are
not necessarily as pressing long afterwards. Public
safety may be less threatened by a suspect in a past
crime who now appears to be going about his lawful
business than it is by a suspect who is currently in
the process of violating the law. Finally, officers
making a stop to investigate past crimes may have a
wider range of opportunity to choose the time and
circumstances of the stop.
Id. at 228-29. However, the Supreme Court stressed that the
law enforcement interest in solving crime might, in some situations,
permit an investigatory stop for a past crime:
Despite these differences, where police have been
unable to locate a person suspected of involvement
UNITED STATES v. GRIGG 10255
in a past crime, the ability to briefly stop that person,
ask questions, or check identification in the absence
of probable cause promotes the strong government
interest in solving crimes and bringing offenders to
justice. Restraining police action until after probable
cause is obtained would not only hinder the investigation,
but might also enable the suspect to flee in
the interim and to remain at large. Particularly in the
context of felonies or crimes involving a threat to
public safety, it is in the public interest that the crime
be solved and the suspect detained as promptly as
possible.
Id. at 229.
Grigg argues that Hensley is distinguishable on its facts
because that case concerned a completed felony, an armed
robbery, that presented a significant public safety risk,
whereas Grigg’s suspected misdemeanor noise violation is a
minor nuisance. In urging us to consider the nature of Grigg’s
purported offense, Grigg contends that the district court erred
by not adequately considering the harmlessness of the misdemeanor
noise violation and that Hensley should not have been
extended to validate the Terry stop here. The government
counters that Hensley need not be limited to completed felonies
because the interest in locating suspects of past misdemeanors
remains of importance in this case and others. Under
this interpretation, the government argues that the actions of
Officers McGuire and Roeder were constitutional because an
investigatory stop of Grigg to identify him as the driver of the
Cougar and inquire about his side of the story was, under the
circumstances, the best approach to resolve the noise complaint,
and thus reasonable under the Fourth Amendment.
[2] Whatever may be the conclusion of the analysis, there
can be little doubt that the Supreme Court’s methodology in
Hensley applies to the circumstances here where the Nampa
police officers undertook an investigative stop to determine
10256 UNITED STATES v. GRIGG
whether Grigg was involved in the past noise violation
alleged in Harmel’s complaint. See In re Stern, 345 F.3d
1036, 1043 (9th Cir. 2003) (“[W]e are bound not only by the
holdings of [Supreme Court] decisions but also by their mode
of analysis.”) (internal quotations omitted; second brackets
added by Stern). The facts of Hensley, however, can be distinguished
because that case concerned a completed felony of
armed robbery, whereas Grigg’s excessively loud music arguably
resulted at most in a misdemeanor violation of the local
noise ordinance that does not endanger the public.5 See Gaddis
v. Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004)
(“Police may . . . make a stop when they have reasonable suspicion
of a completed felony, though not of a mere completed
misdemeanor.”) In Hensley, the Supreme Court pointed out
the obvious and patent public safety risk in allowing a suspect
of armed robbery to remain at large. See 469 U.S. at 229. This
potential threat of violence created the exigency in Hensley to
stop the suspect that justified foregoing the Fourth Amendment’s
warrant requirement. See id. (“Particularly in the context
of felonies or crimes involving a threat to public safety,
it is in the public interest that the crime be solved and the suspect
detained as promptly as possible.”). In sharp contrast, it
is difficult to imagine a less threatening offense than playing
one’s car stereo at an excessive volume. The absence of any
danger to any person arising from the misdemeanor noise violation
here does not support detaining the suspect as promptly
as possible.
5Although the parties and the district court assumed that Grigg’s playing
of excessively loud music, if true, would have been a misdemeanor violation,
the parties do not specify which state or local ordinance might have
been transgressed. For the purposes of our analysis, we accept the parties’
assumption that a misdemeanor was involved, but we note that Grigg’s
behavior was arguably so mild that possibly only a civil infraction would
have resulted, and not a misdemeanor “crime.” However, if a misdemeanor
crime it was, the playing of music at excessive volume is surely in a
class of relatively innocuous crime, as public safety is not threatened by
violation.
UNITED STATES v. GRIGG 10257
[3] Although the Supreme Court did not expressly limit its
holding, the reasoning of Hensley suggests that we may properly
consider the gravity of the offense in balancing the interest
of crime prevention and investigation against the interest
in privacy and personal security when a court assesses the reasonableness
of a Terry stop. In United States v. Jegede, the
district court recognized the applicability of the Hensley balancing
test that included such a focus on the nature of the
offense, see 294 F. Supp. 2d 704, 708 (D. Md. 2003), where
the facts were to some extent analogous to the circumstances
here. In Jegede, the police had received a telephone complaint
from a car following a taxi that observed the taxi stop and the
driver get out to pull up his pants, which apparently alarmed
the complainant that the driver had been having sex in the
back seat or that there was a woman in the car who might
have been assaulted. Id. at 705. The police dispatch relayed
the complaint to an officer in the field, mentioning “possible
indecent exposure.” Id. When the officer later pulled over the
taxi driver, who by then was acting lawfully, there was no
sign of another person, but the officer detected signs of intoxication
on the driver and arrested him. Id. at 706. Noting that
indecent exposure was only a misdemeanor in Maryland, id.
at 708, the district court held that the stop was unconstitutional
because the concern about criminal conduct by the
untrained complainant, filtered through the dispatch, did not
provide a reliable basis for an officer’s reasonable suspicion
to warrant the investigative stop. Id. at 709 (“Once the officers
located the taxi . . . and saw no dangerous activity, they
could and should have inquired again of the basis for the concern
and suspicion of indecent exposure and then made an
evaluation of reasonable suspicion and/or continued to
observe the taxi to see if other suspicious conduct occurred.”)
(emphasis added).
The court in Jegede perceived that an exigency of danger
must link the past completed misdemeanor conduct to the
officer’s justification to stop a suspect under Hensley. The
district court explained:
10258 UNITED STATES v. GRIGG
It is one thing to uphold a stop on suspicion of a misdemeanor,
not committed in an officer’s presence,
when there is potential for repeated danger, such as
weaving or other dangerous driving. It is quite
another to uphold a stop for a completed misdemeanor
when there is no indication that it will be
repeated, or cause danger to others, and particularly
when the police have the means to identify the
driver.
Id. at 708 (emphasis added). The government is correct that
the Jegede court primarily granted relief to the defendant in
that case because of the unreliability of the complaint, but the
district court nevertheless reasoned that indecent exposure by
its nature has no potential for danger, unlike reckless driving,
which might otherwise countenance a reasonable Terry stop.
In state court cases addressing the identical or similar factor,
the state courts have split, with the decisive issue being
the dangerous nature of the underlying misdemeanor that gave
rise to the Terry stop. In State v. Duncan, 43 P.3d 513, 515,
521 (Wash. 2002) (en banc), the Washington State Supreme
Court held that police could not initiate a Terry stop and frisk
after they observed a suspect who might have committed a
civil infraction (drinking alcohol in public). The Duncan court
acknowledged the principle in Hensley that the traditional
interest in officer safety and crime prevention “may not be
present when dealing with past crime.” Id. at 518 (“The . . .
focus on preventing crimes, and promoting the interests of
justice in arresting felons in Hensley, suggests that the interest
in preventing civil infractions may not be accorded the same
weight.”). The Washington State Supreme Court also underscored
the distinction between felonies and misdemeanors
that bears on the delicate balance between public safety and
personal security from governmental intrusion:
[T]his court has cited favorably the common law rule
requiring a warrant prior to arresting an individual
UNITED STATES v. GRIGG 10259
for the commission of a misdemeanor. . . . This rule
illustrates the higher burden this court imposes upon
officers when investigating lesser crimes. Accepting
the presumption that more serious crimes pose a
greater risk of harm to society, we place an inversely
proportional burden in relation to the level of the
violation. Thus, society will tolerate a higher level of
intrusion for a greater risk and higher crime than it
would for a lesser crime.
Id. at 518-19 (internal citations omitted).
Likewise, in Blaisdell v. Comm’r of Public Safety, 375
N.W.2d 880, 881, 883-84 (Minn. Ct. App. 1985), aff’d on
other grounds, 381 N.W.2d 849 (Minn. 1986), the Court of
Appeals of Minnesota invalidated the stop of a driver who
was seen committing a “no-pay” theft from a gas station
because it was a misdemeanor that is, by definition, inherently
less severe than a felony. In reaching this decision, the appellate
court noted
a legislative recognition that the public concerns
served by warrantless misdemeanor arrests are in
some degree outweighed by concerns for personal
security and liberty. At the very least, because misdemeanor
offenses are considered less serious crimes
than felonies and because police cannot arrest for
misdemeanors unless the offense is committed in
their presence, the public concerns served by seizures
to investigate past misdemeanors are less grave
than the concerns served by seizures to investigate
past felonies and gross misdemeanors.
Id. For this reason, the appellate court in Blaisdell imposed a
per se rule in Minnesota that Hensley is inapplicable to past
misdemeanor conduct. Id. at 883-84 (“While we can envision
situations where an automobile stop could advance the public
interest to a greater degree than the present stop, we do not
10260 UNITED STATES v. GRIGG
believe this will arise in a misdemeanor context with sufficient
frequency to appreciably advance the public interest in
solving past crimes.”); see also State v. Bennett, 520 So. 2d
635, 636 (Fla. Dist. Ct. App. 1988) (affirming trial court’s
holding that investigative stops involving past misdemeanors
are constitutionally impermissible).
State courts have also applied the Hensley test to completed
misdemeanors and reached the opposite conclusion that the
governmental interest in investigating and preventing lesser
crimes does not unduly infringe on personal security under
the Fourth Amendment. In State v. Myers, a Louisiana appellate
court considered the applicability of Hensley where the
Louisiana state police stopped the driver of a 1985 gray Lincoln
Continental believed to have struck a traffic sign across
the border in Arkansas according to a teletype issued by the
Arkansas authorities that gave a matching description of the
car later seen in Louisiana. 490 So. 2d 700, 701-03 (La. Ct.
App. 1986). Although the car was not driving unlawfully
when it reached Louisiana, id. at 701, the appeals court held
that the investigative stop was not unconstitutional in light of
the potential hazards related to the offense:
We have a scenario apparently involving a driver
who left the scene of an accident. Damage was
caused, perhaps intentionally, to government property.
At the very least, we are dealing with an
impaired or non-attentive driver who might have
been dangerous to other traffic. The safety of the
motoring public and the potential capacity of the
automobile to inflict serious damage provides a
fairly strong government interest.
Id. at 704 (distinguishing Blaisdell because of the differing
degrees of potential public harm and the close temporal proximity
of the “past” crime of reckless driving compared to the
two-month time lapse after the “no-pay” theft).
UNITED STATES v. GRIGG 10261
In City of Devils Lake v. Lawrence, 639 N.W.2d 466, 467,
473 (N.D. 2002), cited by the government here to support the
district court’s ruling, the North Dakota Supreme Court confronted
a situation where a police officer responded to a call
from police dispatch that “a fight was going to begin” at a bar
and upon arrival at the scene was told by a witness that the
defendant was the one involved in the “verbal altercation.”
Reversing the grant of the defendant’s motion to suppress, the
North Dakota high court reasoned that
[a] law enforcement officer could reasonably infer
and deduce from this dispatch, at the very least, the
possibility that someone at the bar had engaged in,
or was engaging in, ‘violent, tumultuous, or threatening
behavior’ with intent to harass, annoy, or alarm
another person within the meaning of [the state disorderly
conduct statute], to necessitate a call for
police assistance.
Id. at 473. Although the North Dakota Supreme Court did not
address Hensley explicitly, that court was alert to the potential
threat arising from a suspected past misdemeanor of disorderly
conduct, which favored permitting the investigatory stop
to quell the possibility of escalating violence.6
6See also State v. Burgess, 776 A.2d 1223, 1227-28 (Me. 2001)
(upholding stop without mention of Hensley to investigate complaint of
previous threat by drunken man to shoot holes in a vehicle if not moved);
Floyd v. City of Crystal Springs, 749 So. 2d 110, 117 (Miss. 1999) (holding,
without citation to Hensley, that stop of vehicle reported to have
driven recklessly was constitutional and rejecting “felony/misdemeanor
distinction . . . [that] would require officers to ignore communications of
other officials warning of drivers who may be impaired, ill, reckless, or
dangerous to the public”); State v. Blankenship, 757 S.W.2d 354, 357
(Tenn. Crim. App. 1988) (holding stop constitutional on report that suspect
was involved in hit-and-run accident). Although some of these cases
do not rely on Hensley, the common rationale to justify the investigative
stop of an already completed misdemeanor stems from the exigency of
preventing or mitigating public safety risks associated with the nature of
the offense.
10262 UNITED STATES v. GRIGG
[4] These state cases are instructive because they illuminate
the rule we derive from Hensley that a court reviewing the
reasonableness of an investigative stop must consider the
nature of the offense, with particular attention to any inherent
threat to public safety associated with the suspected past violation.
A practical concern that increases the law enforcement
interest under Hensley is that an investigating officer might
eliminate any ongoing risk that an offending party might
repeat the completed misdemeanor or that an officer might
stem the potential for escalating violence arising from such
conduct, both of which enhance public safety. Conversely, the
absence of a public safety risk reasonably inferred from an
innocuous past misdemeanor suggests the primacy of a suspect’s
Fourth Amendment interest in personal security.
[5] As a complement to these practical concerns, moreover,
the formal distinction between felonies and misdemeanors
generally followed under state law in prohibiting warrantless
arrests for misdemeanors committed outside the presence of
the officer also informs our inquiry.7 As noted by the court in
Blaisdell, this formal distinction amounts to “a legislative recognition
that the public concerns served by warrantless misdemeanor
arrests are in some degree outweighed by concerns
for personal security and liberty.” Blaisdell, 375 N.W.2d at
883; see also Duncan, 43 P.3d at 518-19 (“Accepting the presumption
that more serious crimes pose a greater risk of harm
to society, we place an inversely proportional burden in rela-
7In all states covered by our circuit, except Hawaii and Oregon, the
respective state legislatures have observed this distinction by promulgating
laws that prohibit an officer, though with some varying exceptions that are
inapplicable here, from arresting a person who commits a misdemeanor
outside of his or her presence. See Alaska Stat. § 12.25.030 (2006); Ariz.
Rev. Stat. Ann. § 13-3883 (2007); Cal. Penal Code § 836 (2007); Idaho
Code Ann. § 19-603 (2007); Mont. Code Ann. § 46-6-311 (2005) (allowing
for warrantless arrest not in the presence of an officer in the event of
circumstances involving violence); Nev. Rev. Stat. Ann. § 171.124 (2007)
(allowing for arrest for gross misdemeanor committed outside officer’s
presence); Wash. Rev. Code Ann. § 10.31.100 (2007).
UNITED STATES v. GRIGG 10263
tion to the level of the violation.”). In light of this distinction,
our evaluation of a Terry stop in the context of a completed
misdemeanor should tend to give primary weight to a suspect’s
interests in personal security, while considering the law
enforcement’s interest in the immediate detention of a suspect
is not paramount. Although federal constitutional law is controlling,
we note this formal distinction under state law
because “[s]tate law is often relevant in analyzing the reasonableness
of police activities under the fourth amendment.”
Reed v. Hoy, 909 F.2d 324, 325, 330 & n.5 (9th Cir. 1990)
(examining reasonableness in context of § 1983 and claim of
qualified immunity); see also Bingham v. City of Manhattan
Beach, 341 F.3d 939, 950 (9th Cir. 2003) (“In evaluating a
custodial arrest executed by state officials, federal courts must
determine the reasonableness of the arrest in reference to state
law governing the arrest.” (internal quotation marks and alteration
omitted)).8
8Consideration of the nature of the offense under Hensley is also consistent
with the Fourth Amendment reasonableness inquiry in the context of
a warrantless entry into a home of a person suspected of a non-jailable
traffic offense. See Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). In
Welsh, the arrest occurred after a witness observed a car swerve into an
open field and called the police. Id. at 742-43. When the witness told the
police that the car’s driver walked away from the accident, the police
checked the car’s registration, determined that Welsh lived nearby, and
presently gained entry to his house without a warrant and arrested him for
driving while intoxicated. Id. Rejecting the government’s exigency theories,
the Supreme Court invalidated the entry and arrest in light of the
minor nature of the offense. Id. at 747-48, 750 (“Our hesitation in finding
exigent circumstances . . . is particularly appropriate when the underlying
offense for which there is probable cause to arrest is relatively minor.”);
accord United States v. Johnson, 256 F.3d 895, 908 (9th Cir. 2001) (en
banc) (recognizing that where the police are in hot pursuit of defendant
who has committed the misdemeanor of resisting arrest, the relatively
minor nature of the offense “weighs heavily against” the reasonableness
of a warrantless entry onto a suspect’s property based on exigent circumstances).
Doubtless, a Terry stop is less intrusive on personal security than
the home entry in Welsh; however, that distinction does not detract from
the Fourth Amendment command common to both settings that individual
privacy must be protected from unreasonable encroachment where the
defendant has committed a mere misdemeanor. See Johnson, 256 F.3d at
10264 UNITED STATES v. GRIGG
[6] Despite the misdemeanor-felony distinction, and the
fact that some courts have relied on this distinction to limit
Hensley, we decline to adopt a per se standard that police may
not conduct a Terry stop to investigate a person in connection
with a past completed misdemeanor simply because of the
formal classification of the offense. We think it depends on
the nature of the misdemeanor. Circumstances may arise
where the police have reasonable suspicion to believe that a
person is wanted in connection with a past misdemeanor that
the police may reasonably consider to be a threat to public
safety. See, e.g., Myers, 490 So. 2d at 704 (reckless driving),
Devils Lake, 639 N.W.2d at 467 (altercation with a potential
for violent escalation); Burgess, 776 A.2d at 1228 (drunken
person making threats that he would shoot vehicle if not
moved). We leave that case for another day.
[7] We adopt the rule that a reviewing court must consider
the nature of the misdemeanor offense in question, with particular
attention to the potential for ongoing or repeated danger
(e.g., drunken and/or reckless driving), and any risk of
escalation (e.g., disorderly conduct, assault, domestic violence).
An assessment of the “public safety” factor should be
considered within the totality of the circumstances, when balancing
the privacy interests at stake against the efficacy of a
Terry stop, along with the possibility that the police may have
alternative means to identify the suspect or achieve the investigative
purpose of the stop.
B
[8] We conclude that Officers Roeder’s and McGuire’s
investigatory stop of Grigg was not reasonable. As discussed
above, the exceedingly harmless past misdemeanor conduct
908 n.6. (“[I]n situations where the underlying offense is only a misdemeanor,
law enforcement must yield to the Fourth Amendment in all but
the ‘rarest’ cases.” (quoting Welsh, 466 U.S. at 753)).
UNITED STATES v. GRIGG 10265
— allegedly playing one’s car stereo at a volume in suspected
violation of a local noise ordinance — need not spur the
police into instant action as might the opportunity to stop a
reputedly armed felon, street fighter, or reckless driver. Cf.
Hensley, 469 U.S. at 223; Devils Lake, 639 N.W.2d at 467;
Myers, 490 So.2d at 704. So far as we can discern, if Officers
McGuire and Roeder had not stopped Grigg, the threat to public
safety from his loud music would have been nil. Given the
lack of exigency to seize Grigg temporarily, his interest in
personal security against governmental intrusion is entitled to
more deference.
Moreover, the countervailing strength of the governmental
interest in crime prevention must be gauged in light of the
alternative methods the Nampa police had to ascertain Grigg’s
identity. The district court made findings with respect to two
alternative means of identifying Grigg. First, the district court
determined that it would have been unreliable for Officer
McGuire to have dispatch check the complaint logs. In addition,
the district court found that the length of time required
to have dispatch check the logs would have permitted Grigg
to leave the area. This finding appears to us to be correct
because a check of the complaint logs would have been ineffective
where Harmel did not know Grigg’s identity and he
could thus not have provided it in a previous complaint.
[9] The district court’s second finding that Officers
McGuire and Roeder could not have retrieved reliable information
about the driver of the Cougar from the residence at
1800 East Dewey Street, however, is less tenable. The district
court found that this method was unreliable because the officers
could not have known whether anyone was home at the
residence; and if someone were home, whether the resident
would have provided the information sought because that person
would have been under no duty to do so. Although the
possibility of non-cooperation existed, it was too speculative
to support the district court’s finding, where there was at least
a reasonable probability that a resident would have given the
10266 UNITED STATES v. GRIGG
information upon police inquiry. We may not lightly assume
that members of the public will necessarily be uncooperative.
There was no reason here to assume that police questioning
of the neighbors about a noisy car would have met a stone
wall. The Nampa police took no steps to pursue these opportunities
to investigate the noise complaint, although they
might have been equally fruitful as directly pulling over
Grigg. That Grigg was leaving the area, on which the district
court relied to support its reasoning, has relatively minimal
force because of the innocuous nature of the offense and the
possibility that the driver could be identified by further investigation.
Moreover, the district court’s finding of unreliability
is not entirely supported by the record because Officer
McGuire testified that absent the opportunity to stop Grigg
directly, and in lieu of the ineffective method of checking the
complaint logs, “it would have been quicker for me to just go
down to the address where he came from and ask them for the
name of the individual that had just left. I would have probably
investigated it that way.” There was no testimony that
Officers McGuire and Roeder lacked confidence that contact
with the residents at 1800 East Dewey Street would have produced
Grigg’s identity. Finally, the district court’s speculation
that the residents might not have been home is not a powerful
ground for an immediate stop of the car because Grigg had
left the residence only moments before the stop, and even if
the residents were away temporarily, the police could have
returned to question them.
[10] That the police failed to run a routine license check on
the Cougar compounds the unreasonableness of the stop. On
this point, the district court made no finding, although Officer
Roeder was in a position, as he trailed Grigg before pulling
him over, to run a check on the license plate that would have
accessed solid information on the Cougar and the registered
owner.9 While it is possible that Grigg might have borrowed
9We have recently held that “when police officers see a license plate in
plain view, and then use that plate to access additional non-private information
about the car and its owner, they do not conduct a Fourth Amendment
search.” United States v. Diaz-Castaneda, No. 06-30047, 2007 WL
2044244 at *4 (9th Cir. July 18, 2007).
UNITED STATES v. GRIGG 10267
the car from the owner, a police officer’s license plate check
is a standard procedure for gathering information about a suspected
violation of the law that went untested here.
This case is nonetheless difficult because we recognize that
the police have a manifest interest in identifying the perpetrators
of crime, whether the offense be minor or major. Finding
the violator of even a humble noise ordinance has some value
to society and certainly would have rewarded the persistent
concern of the complaining neighbor Harmel. But giving satisfaction
to Mr. Harmel and locating the source of annoyingly
loud music are not all that guide us. There is a traditional and
constitutionally preserved interest in personal security from
governmental intrusion, which fuels the requirements that the
police obtain warrants before making an arrest and that police
have reasonable suspicion that criminal activity is afoot
before making a Terry stop. The matter, in our view, stands
on different footing with regard to a completed crime that is
a misdemeanor that does not endanger the public.
Directly pulling over the driver of the Cougar was indeed
the most efficient approach to investigating Harmel’s complaint.
But simple efficiency and expediency of law enforcement
efforts do not automatically override the other crucial
element of the Hensley balancing test — personal security
from governmental intrusion in the operation of one’s vehicle.
See Brignoni-Ponce, 422 U.S. at 878 (“[T]he reasonableness
of such seizures depends on a balance between the public
interest and the individual’s right to personal security free
from arbitrary interference by law officers.”); see also Prouse,
440 U.S. at 657 (noting vehicle stops “interfere with freedom
of movement, are inconvenient,[ ]consume time . . . [and]
may create substantial anxiety”). Moreover, the reasonableness
of an investigative stop is to a degree undermined,
where, as here, the police have not pursued alternate available
opportunities to gather information about the driver. That
Grigg was leaving the area might have warranted an immediate
Terry stop at the expense of alternative investigative meth-
10268 UNITED STATES v. GRIGG
ods in circumstances involving an offense that threatened
public safety, but the noise violation here created no such exigency.
To validate the investigative stop under these circumstances
would invite the erosion of the Fourth Amendment
rights of Grigg and others.
IV
[11] We hold that under the balancing test set forth in Hensley,
a court reviewing the reasonableness of a stop to investigate
a past misdemeanor (or other minor infraction) must
assess the potential risk to public safety associated with the
nature of the offense. Under the circumstances here, it was
unreasonable for the Nampa police to pull over Grigg on suspicion
of having played his music too loudly where they did
not duly consider the lack of any threat to public safety, especially
given the untested alternative means of ascertaining
Grigg’s identity. The motion to suppress was erroneously
denied.10 We reverse Grigg’s conviction and remand to the
district court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
10Because we vacate the conviction and remand on this ground, we do
not reach Grigg’s claims of prosecutorial misconduct.
UNITED STATES v. GRIGG 10269

http://www.SanDiegoDrunkDrivingAttorney.net

Lindsay Lohan felony charges to be dropped?

California DUI defense lawyer news

Felony charges against Lindsay Lohan may be dropped in connection with two of her California DUI arrests.

The District Attorney (DA) will “almost certainly will not file cocaine charges in connection with her DUI bust Memorial Day weekend in Beverly Hills.”

As for her last arrest on July 24th, the source said that the DA could file felony cocaine possession and charge her with bringing cocaine into a correctional facility, but that will not be likely either. The reports states that the “D.A. is inclined not to file those felony charges either.”

California DUI police step up efforts, DUI checkpoints

San Diego California DUI Defense Attorney news

California DUI enforcement to be awarded in San Diego on September 14, 2007.

14 people were arrested for California drunk driving and 96 citations were issued in a California DUI sobriety checkpoint that screened 1,238 vehicles Saturday night on Mariposa Road in Victorville, California.

The Avoid the 25 DUI Task Force is focusing on drunken driving through Labor Day, and 17 more DUI checkpoints and 55 saturations are planned.

Also, the California Highway Patrol announced Monday it is redoubling its traffic safety efforts during the upcoming Labor Day holiday weekend in hopes of ending the summer on a more positive note.

The announcement comes in the wake of a particularly tragic Fourth of July holiday, when 18 people died on California roadways in a 24-hour period.

The California DUI checkpoint was conducted by the task force, which includes all 25 law enforcement agencies in San Bernardino County.

One of the main goals of the checkpoint was to make drivers think about drinking and driving, and the hope was that if drivers saw the California DUI checkpoint, they would be less likely to drink and drive.

One driver who went through the California DUI checkpoint told deputies that she was returning from a club and that she did not drink because she drove by the California DUI checkpoint on the way to the club.

Thirty people who passed through the California DUI checkpoint did not have licenses or had suspended licenses, and 28 vehicles were impounded for 30 days.

One woman, whose license was suspended for previous drunk driving, tried turning around to avoid the checkpoint. Deputies pulled her over, impounded her car for 30 days, and she will spend a minimum of 10 days in jail, Mattke said.

Analyst Tom Firey of the Cato Institute said police checkpoints are legal because no one is singled out. “Because you are searching everyone coming down a strip of road, it’s not an improper search,” he said.

Last year, 46 people were killed in traffic collisions during the Labor Day weekend, according to the CHP, eight of them died in crashes within the CHP's Inland Division.

In addition to lives lost, 1,749 people were arrested statewide for driving under the in