From the Classroom: The Opinion Evidence Rule and Criminal Investigations – Part II
By Ray Hill
Professor Emeritus, Santa Rosa Junior College
This is the eleventh in a series of bulletins covering the California Evidence Code and criminal investigations. We continue a review of the Opinion Evidence Rule (800 E.C.) as it relates to an officer, deputy or investigator giving testimony in court (140 E.C.).
In Part I, we covered giving lay opinions relating to observations about a subject’s personal appearance and demeanor – their state of emotion, potential intoxication and apparent injury.
When within the personal knowledge of a lay witness (a non-expert) and helpful to the clear understanding of one’s testimony, an opinion can be offered in these additional areas.
Additional Circumstances Where a Lay Opinion is Admissible
Quantification of Evidence – Measurement, Speed, Size, Time, Distance, Value
Examples:
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An opinion on fair market value of suspected stolen property when making a probable cause felony arrest (836(a)(3) P.C.) for grand theft/receiving stolen property (+$950) or property damage for vandalism (+$400).
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An officer’s sensory observation and estimation of speed when there was reasonable opportunity to view a vehicle in motion (Peo. v. Sullivan (1991) 234 Cal. App. 3d 58)
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Describing the speed of an automobile, streetcar or train as “unusual,” “very fast,” “much faster than another” or “faster than the ordinary rate” (1 Witkin Cal. Evidence 3d 1986)
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In a vehicular manslaughter case, “I kind of thought he wasn’t driving with the best control of his vehicle,” “He passed me like a bat out of hell in a crazy place” and speed estimates ranging from “50-80 MPH” (Peo. v. Van Wells (1995) 31 Cal. App. 4th 1276)
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“It has long been the case that an officer’s visual examination can supply probable cause to support a traffic stop for speeding in appropriate circumstances,” (U.S. v. Ludwig (2011) 641 F. 3d 1243)
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A detention for speeding (35 to 40 MPH in a 25 MPH residential zone) was based upon an officer’s adequate opportunity to view the vehicle in motion and his extensive training and experience (14 years as a police officer, completion of a radar-speed estimation class and more than 1,000 field speed estimations) (Peo. v. Nice (2016) 247 Cal. App. 4th 928)
Note: Reasonable suspicion is the legal standard for a traffic detention. Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of evidence (51%) (Illinois v. Wardlow (2000) 528 U.S. 119). Thus, a detention based upon estimation of speed is perfectly valid in the investigation of whether the driver was operating at an unsafe speed for conditions.
I’ve always liked this case interpreting unsafe speed for conditions: An officer stopped the defendant’s vehicle after observing her travelling 45 MPH in a 55 MPH zone while holding a cigarette in one hand and a cell phone in the other, leaving no hands on the steering wheel. The weather was dry and clear, and traffic was heavy. A driver’s behavior that “endangers the of persons or property on the roadway is a valid factor to consider under the Basic Speed Law.” Defendant was driving without her hands on the steering wheel – “zero was the safe speed” (Peo. v. Farleigh (2017) 13 Cal. App. 5th Supp. 12).
Age, Identity, Physical Description
Giving an opinion on physical description, results in a lineup or show up, voice identifications (tone, accent, pitch), or genuineness of handwriting:
Examples:
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An opinion on how old a minor victim looked based upon her physical maturity and behavior to establish a mistake of fact defense in an Unlawful Sexual Intercourse case (U.S. v. Yazzie (1992) 976 F. 2d 1252)
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Physical and clothing description (hooded sweatshirt, baseball cap, heavy raincoat) on the identity of a bank robbery suspect (U.S. v. Henderson (1995) 241 F 3d 630)
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A work supervisor and a probation officer viewed a “grainy quality” surveillance photograph taken during a bank robbery and gave opinions that the defendant was the suspect (U.S. v. Pierce (1999) 224 F 3d 158)
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A probation officer who had met the defendant on four occasions gave an opinion that the person in a bank robbery surveillance photo was the defendant (U.S. v. Beck (2004) 418 F 3d 1008)
Physical Characteristics and Properties of Substances (Drugs, Blood and More)
These include the appearance or packaging characteristics of narcotics; appearance of a bloodstain or powder tattooing; or common characteristics associated with instrumentalities, deadly weapons, or other contraband.
At trial, expert testimony would be needed to establish the fact the evidence was illegal drugs, blood, illegal contraband, etc.
Examples:
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Total wattage of grow lights, square footage of a room, and the number of immature and “clone” plants seized would yield an estimated 27.5 pounds of marijuana on harvest (Peo. v. Engstrom (2011) 201 Cal. App. 4th 174)
An opinion on the physical properties of controlled substances (appearance, packaging, presumptive field test, experience and training) is permissible to form probable cause to arrest (836(a)(3) P.C.), to support probable cause to search a vehicle under the “Automobile Exception,” or to support probable cause contained in an affidavit for a “roll back” search warrant into a residence or business.
Note: You won’t know if the substance is the “Real McCoy” until your agency or DOJ crime lab conducts a forensic analysis. In the meantime, your investigation moves forward.
Other Physical Attributes and Substances:
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Similarities between the tread on defendant’s tennis shoes and the impressions left outside a sliding glass door during a residential burglary (Peo. v. Maglaya (2003) 112 Cal. App. 4th 1604)
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When responding to a domestic violence call, officers observed a suspected bloodstain on the front door. This observation supported an exigency entry to aid the victim (Peo. v. Frye (1998) 18 Cal. 4th 894)
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Lay opinion on the size, color, shape consistent with a bloodstain on a murder defendant’s pants was admissible (Peo. v. Phillips 2022 DCA Cal. App. Lexis 164, LUPC Ref. #CAB00140)
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Lay opinion based upon an officer’s experience and training on the smell of “freshly burned” cannabis in a vehicle being operated on the roadway for a further probable cause search for illegally possessed cannabis (Peo. v. Moore (2021) 64 Cal. App. 5d 291; Peo. v. Waxler (2014) 224 Cal. App 4th 712; Peo. v. Fews (2018) 27 Cal. App. 5th 559); Peo. v. Castro (2022) 2022 WL 17662954).
Some Lay Opinions Don’t Require Expert Confirmation
Example:
The victim (employee) testified that the amount of substance thrown on her was less than a “glass of water,” and that drips came into contact with her glasses, face, facemask and arm. She described a “sticky, clear, light white liquidly substance” that stuck to her glasses such that she was required to soak them in water to wash the substance off.
She testified that she had personal experience in seeing both semen and milk, and that in her opinion, the substance appeared to be semen based upon its color and texture. Her observation was also independently corroborated by a deputy sheriff. No sample was scientifically analyzed.
The Fourth District Court of Appeal ruled that two witnesses with personal knowledge had testified that in their opinions the substance thrown was semen. The defendant was seen on this occasion and others with his hands down the front of his pants in a physical action similar to masturbating. The court ruled there was sufficient proof that a “gassing substance” was thrown without expert opinion (Peo. v. Tice, (2013) 4DCA #077504).
Author’s Notes: What about an opinion on sound for the purposes of reasonable suspicion for a traffic detention for 27151 V.C.: No person shall modify an exhaust system of a motor vehicle in a manner which will amplify or increase the noise emitted by the motor of such vehicle.
This follows the same analysis as an opinion on speed.
You observe the relative speed of vehicles on the street and know what is in and out of the ordinary. You also hear the normal sound of exhaust noise emitting from vehicles and know what is out of the ordinary. The internet is aplenty with after-market mufflers (Outlaw Exhaust, American Thunder, Hot Tamale) and resonator exhaust tips that act as a megaphone to amplify sound. You make a stop for investigation and questioning to determine if an enforceable V.C. violation exists. You can get a decibel meter on Amazon for under $50. (California’s exhaust limit for vehicle less than 6,000 pounds is 95dbA) and record on your body worn camera the sound of exhaust and the decibel level at idle and at incremental RPM levels that would simulate acceleration.
Just thoughts from this “OG” who despises the “show off” noise created by violators that unfortunately we experience every day and supports California’s five-year pilot study (2022-2027) that placed automated camera exhaust noise detection systems in six (undisclosed) cities to determine the future of this technology in reducing noise pollution.
Bottom Line
In summary, the Opinion Evidence Rule is of great assistance to you in supporting your reasonable suspicion to detain, probable cause to arrest, probable cause to search, evaluating a crime scene or making your testimony clear on how you proceeded with your investigation.
There is an old adage in report writing instruction that there is no place for opinion in a police report. Exception: The Opinion Evidence Rule (800 E.C.)!
Stay Safe,
RH
