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• Use of Force in Subduing Armed Suspect
• Knee in the Back While Handcuffing
• Qualified Immunity in Federal Civil Suits

Kneeling on an armed, potentially violent, suspect’s back for eight seconds while handcuffing him, does not necessarily subject the offending officer to federal civil liability for using excessive force.  Absent prior case law to the contrary, the officer is entitled to qualified immunity.

Plaintiff Ramon Cortesluna had a drinking problem; getting violent and abusive with his live-in girlfriend and her two daughters (ages 12 and 15) when he drank.  On the evening of November 6, 2016, he did just that, chasing them all into a back room where they managed to barricade themselves.  Twelve-year-old I.R. called 911, telling the operator that they were all barricaded in a room because plaintiff was “always drinking,” had “anger issues,” was “really mad,” and was breaking up the house with a chainsaw and was going to hurt them.  I.R. further reported that her mother was holding the door closed to prevent plaintiff from entering and hurting them.  I.R.’s older sister then came on the line, telling the operator that plaintiff was “sawing on the door knob” as they spoke.  The 911 operator could hear a sawing sound as she talked to the two girls.  This information was passed on to Union City police units in the area, resulting in five officers—including the eventual civil defendants in this case, one of whom was Daniel Rivas-Villegas—responding to the scene.  Upon their arrival, the officers found the house to be quiet.  But they could see plaintiff through a window, holding nothing more than a beer.  Checking back with the dispatcher, it was confirmed that the caller had reported that plaintiff had been using a chainsaw. The dispatcher further reported to the officers that during the 911 call, she heard sawing sounds in the background as if plaintiff were trying to saw the bedroom door down, and that the callers complained that they were unable to get out.  As one officer stood by, ready with a beanbag shotgun, Officer Rivas-Villegas knocked on the front door, identified himself, and commanded plaintiff to come to the door.  A few seconds later, plaintiff emerged from a nearby sliding glass door, holding a large metal object that looked like a crowbar (described in the Nine Circuit’s decision as a “pick tool”).  Ordered to drop it, he did.  Officer Rivas-Villegas then ordered plaintiff to “come out, put your hands up, walk out towards me.” Plaintiff complied.  Officer Rivas-Villegas told plaintiff to “keep coming.”  Plaintiff continued to comply, walking out of the house towards the officers.  When plaintiff was about ten or eleven feet from the officers, Officer Rivas-Villegas told him “stop” and “get on your knees.”  Plaintiff stopped as ordered, but failed to drop to his knees.  As plaintiff stood there, another officer observed a knife in the front left pocket of his sweatpants, announcing to the other officers that plaintiff had “a knife in his left pocket, knife in his pocket!”  An officer commanded plaintiff not to put his hands down.  Plaintiff ignored the officer’s orders by simultaneously lowering his head and his hands.  Plaintiff was immediately shot twice with beanbag rounds as his hands were still in a downward position, hitting him in the belly and hip.  Plaintiff again raised his hands over his head and then, when ordered again, lowered himself to the ground.  As he was doing so, Officer Rivas-Villegas used his foot to push plaintiff flat on the ground.  Once down, Officer Rivas-Villegas pressed his knee into plaintiff’s back on the side where the knife was, and pulled his arms behind his back so that another officer could handcuff him.  Plaintiff was held in this position with Officer Rivas-Villegas’ knee in his back for no more than eight seconds.  Officer Rivas-Villegas then lifted plaintiff up by his handcuffed hands and moved him away from the doorway.  Plaintiff’s girlfriend and her two daughters were found safe and unharmed in the house.  (Unknown if they ever found a chainsaw.)  Plaintiff later filed a civil suit in federal court (per 42 U.S.C. § 1983) alleging (1) the use of excessive force in shooting him with a beanbag shotgun and (2) Officer Rivas-Villegas’ use of excessive force by kneeling on him while he was on the ground.  As a result of the officers’ actions, plaintiff claimed that he suffered “physical, emotional, and economic injuries.” The federal district (trial) court granted the civil defendants’ (i.e., the officers) respective summary judgment motions, ruling that that the force used by the officers was objectively reasonable under the circumstances and that they were entitled to qualified immunity. Plaintiff Appealed. The Ninth Circuit Court of Appeal, in a partial reversal, agreed with the trial court that use of the beanbag shotgun was reasonable and that the officers were entitled to qualified immunity on that issue.  However, it was also held, in a split (2-to-1) decision, that Officer Rivas-Villegas was not entitled to qualified immunity for kneeling on plaintiff’s back, finding that their prior decision in LaLonde v. County of Riverside (9th Cir. 2000) 204 F. 3rd 947, put the officer on notice that kneeling on a non-resisting subject’s back constituted excessive force and a Fourth Amendment violation.  The Ninth Circuit therefore reversed the trial court on that issue.  (See Cortesluna v. Leon (9th Cir. Oct. 27, 2020) 979 F.3rd 645, briefed at  California Legal Update, Vol. 26, #2, dated Jan. 18, 2021.)  Officer Rivas-Villegas petitioned for certiorari to the United States Supreme Court.

The United States Supreme Court, in a unanimous “per curiam” decision (i.e., without oral arguments and without identifying the decision’s author), granted Officer Rivas-Villegas’ petition for certiorari and reversed.  The Court first set out the rules for when the doctrine of “qualified immunity,” protecting cops from potential civil liability, might apply.  Qualified immunity attaches when an officer’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.  (White v. Pauly (2017) 137 S.Ct. 548, 551.) A right is clearly established, and a lawsuit will be upheld, when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” (Mullenix v. Luna (2015) 577 U.S. 7, 11.) Although the Supreme Court has never held that a case must be directly on point for a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.”  (White v. Pauly, supra.)  This inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.”  (Brosseau v. Haugen (2004) 543 U.S. 194, 198.)  Specificity, it is especially important in the Fourth Amendment context; i.e., where it is sometimes difficult for an officer to determine how the relevant legal doctrine (e.g., the use of “excessive force”) will apply to the factual situation the officer confronts.  (Mullenix v. Luna, supra, at p. 12.) Whether an officer has used excessive force depends on “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” (Graham v. Connor (1989) 490 U. S. 386, 396; see also Tennessee v. Gardner (1985) 471 U.S. 1, 11.)  Lastly, the Supreme Court noted here that in an obvious case, these standards can “clearly establish” the answer, even without a body of relevant case law.  However, per the Court; “this (current case) is not an obvious case.”  In order to show a violation of clearly established law, plaintiff must identify a case that put Officer Rivas-Villegas on notice that his specific conduct was unlawful.  Plaintiff attempted to do that by using their own prior decision in LaLonde v. County of Riverside, supra.  Questioning whether an intermediate appellate court, such as the Ninth Circuit Court of Appeal, can use their own case decisions, as opposed to a U.S. Supreme Court decision (an issue that is not further discussed, but see Note, below), the Court held that LaLonde is so factually different from the instant situation that it did not put Officer Rivas-Villegas on notice that putting his knee on plaintiff’s back might constitute a Fourth Amendment excessive force issue.  Per the Court: “(F)or purposes of §1983, LaLonde is materially distinguishable and thus does not govern the facts of this case.”  For instance, LaLonde involved a mere noise complaint as opposed to a violent domestic dispute. The plaintiff in Lalonde was unarmed, carrying no more than a sandwich.  While the plaintiff in Lalonde did, at least initially, offer some resistance, such resistance ceased as soon as he was pepper-sprayed.  And then, while handcuffing the unresisting plaintiff, the defendant officer “deliberately dug his knee into LaLonde’s back with a force that caused him long-term if not permanent back injury.”  Finding insufficient similarity between the two cases, the Court held that “(o)n the facts of this case, neither LaLonde nor any decision of this Court is sufficiently similar.”  The Court therefore granted Officer Rivas-Villegas’ petition for certiorari and reversed the Ninth Circuit’s determination that the officer is not entitled to qualified immunity.

There is an article written by someone named Ian Millhiser, dated October 20th of this year.  Mr. Millhiser, who I’ve never of heard before, has some serious credentials; more than qualifying him to write on this topic. You can “google” his name if you’re interested.  And you can find his article at “https://www. The Supreme Court floats a startling expansion to police immunity from the law.” This article draws attention to two off-the-wall comments made by the Supreme Court in this decision to the effect that circuit court of appeal decisions can no longer (if they ever could) be used as precedent in establishing an officer’s knowledge that the force he is using might be unreasonable.  Specifically, the comments made by the Court were; “. . . even assuming that Circuit precedent can clearly establish law . . . .” and “. . . even assuming that controlling Circuit precedent clearly establishes law. . . .”  Per Mr. Millhiser: “These lines open the door to a new regime, where victims of police violence can no longer rely on (lower) appellate court decisions to breach an officer’s partial immunity to suit.”  Mr. Millhiser cites in his article the U.S. Supreme Court case of Lane v. Franks (2014) 573 U.S. 228, as an “indicat(ion) that (contrary to what’s intimated in this new case) circuit court precedent can (in fact) overcome qualified immunity.”  But, if you read it, Franks does not so hold.  It merely discusses whether or not various Eleventh Circuit Court of Appeal decisions were close enough to use as precedent in that case without ever considering the issue whether circuit court of appeal decisions in general are in fact available for that purpose.  So while the two comments referenced by Mr. Millhiser in this new case may cast some doubt as to the propriety of using prior circuit court of appeal decisions on the issue of qualified immunity, it really can’t be considered (being no more than mere “dicta,” at best) as any more than an invitation for litigators and courts to debate the issue in some future qualified immunity case.  Note also that California cops have to be concerned with Senate Bill 2, signed by Governor Newsom on September 30th, limiting the doctrine of qualified immunity in cases filed in state court under the so-called Bane Act (Civil Code § 52.1); California’s equivalent to a federal 42 U.S.C. § 1983 civil suit.  I don’t have all the painful details on SB 2 yet, other than to forewarn you that when it becomes effective on January 1, 2022, it will eliminate certain immunity provisions for peace officers and custodial officers, or public entities employing peace officers or custodial officers, sued in state court under the act.  You can look forward to more detail in future Updates.  Lastly, don’t fall victim to the temptation of letting the George Floyd case (occurring in May, 2020) influence your thinking about “kneeling-on-the-back” cases.  The Floyd situation was vastly different, with the offending Minneapolis police officer (Derek Chauvin) kneeling on the already-handcuffed Floyd’s “neck” for 8 minutes and 46 seconds as Floyd complained that he couldn’t breathe.  In this new case, for instance, Officer Rivas-Villegas testified that he kneeled on the side of Cortesluna’s back, where the knife was located, so that he couldn’t reach it as they attempted to handcuff him.  Further, it was only for eight seconds, and there was no complaint by Cortesluna that it was hurting him or preventing him from breathing.  The Floyd situation, therefore, obviously cannot be used as any sort of precedent for condemning Officer Rivas-Villegas’ actions in this case.

• Detention of Passengers in a Lawfully Stopped Vehicle
• “Unanimity” and “Burden of Proof” Requirements in the Penalty Phase of a Capital Case

Officers making a traffic stop may lawfully order passengers to remain in the vehicle for the duration of the traffic stop.  A jury need not be unanimous in determining which aggravating factors apply during the penalty phase of a capital murder case.  The burden of proof during the penalty phase in proving aggravating factors is proof by a preponderance of the evidence. 

Defendant Don’te Lamont McDaniel was a member of the Bounty Hunter Bloods, a Southeast Los Angeles street gang which controlled the Nickerson Gardens area; a large public housing complex.  At around 3:30 a.m. on April 6, 2004, defendant and another gangster (prosecuted separately) recruited (allegedly at gunpoint) Elois Garner to knock on the back door of a Nickerson Gardens apartment rented to Annette Anderson.  Inside the apartment at the time were Annette, George Brooks, Janice Williams and Debra Johnson.  (There was some inference in the case decision that Brooks—also a Bounty Hunter Blood member—had stolen drugs from defendant and was selling them.)  When asked who was knocking, Elois Garner identified herself.  Janice Williams opened the door, only to be confronted by defendant pointing a gun at her.  Defendant immediately shot and wounded Williams, who lost consciousness.  (Williams survived.)  George Brooks, standing in the kitchen, was shot numbers times and died at the scene.  Annette Anderson—also in the kitchen--was shot numerous times, also dying at the scene.  Debra Johnson, who was in the living room, was seriously wounded with gunshot wounds to her face and chest.  (Johnson survived.)  Nine-millimeter and a .357 magnum shell casings were recovered from the scene.  Both Williams and Johnson identified defendant to investigators as the shooter.  On April 11—five days after the shooting—Los Angeles County Deputy Sheriffs Marcus Turner and Eric Sorenson were on patrol in the Nickerson Gardens area when they noticed a Toyota without a license plate driving on 120th Street near Central Avenue. Two individuals were in the Toyota.  The deputies activated their marked vehicle’s emergency lights in an attempt to pull it over.  The car continued on for about 10 seconds during which it was noticed that the passenger’s head kept moving back and forth, as if “conversating” (sic) with the driver.  Deputy Turner activated the siren, prompting the car to pull to the curb. As soon as the car stopped, the passenger—identified as defendant—opened his door, “stepped out and made a motion” as if he was about “to run out of the vehicle.”   Deputy Sorenson yelled at defendant to get back into the car.  Defendant complied.  Determining that the driver did not have a driver’s license, he was arrested and put into the patrol vehicle.  Defendant was asked to step out of the car in preparation for a pre-impound inventory search of the vehicle (the legality of which was not contested). As he did so, Deputy Turner noticed a bulge in defendant’s right front pants pocket that resembled a gun.  Defendant was immediately patted down for weapons, resulting in the recovery of a loaded semiautomatic nine-millimeter Ruger pistol and a separate loaded magazine.  The nine-millimeter cartridges recovered from the murder scene were later matched to this Ruger.  Defendant’s motion to suppress the firearm was denied by the trial court.  He was tried and convicted of two counts of murder, two counts of attempted murder, and other charges, with special circumstances being found to be true.  Upon the jury determining during the penalty phase of the trial that the aggravating factors outweighed any factors in mitigation, defendant was sentenced to death.  His appeal to the California Supreme Court was automatic.

California Supreme Court, in a unanimous decision, affirmed. 

(1) Ordering a Passenger to Remain in the Vehicle:  Among the issues on appeal was the legality of Deputies Turner and Sorenson ordering defendant, as a passenger in a legally stopped motor vehicle, to remain in the car during the April 11th traffic stop.  Defendant’s argument on appeal was that he had been unlawfully detained when ordered to remain in the car, and that had he been allowed to leave, the firearm (the murder weapon) he was carrying would never have been found.  The Court disagreed.  The United States Supreme Court, while never specifically deciding this issue, has held that for all intents and purposes, both the driver and any passengers in a lawfully stopped vehicle have, in effect, been “seized.”  (Brendlin v. California (2007) 551 U.S. 249, 251.)  The fact that a passenger in a stopped vehicle is not allowed to leave does not mean that he has been unlawfully detained.  To the contrary, the U.S. Supreme Court has held, at least in general terms, that such a “seizure” of the passenger, during the duration of a lawful traffic stop, is lawful.  Per the U.S. Supreme Court:  “The temporary seizure of driver and passengers (Italics added) ordinarily continues, and remains reasonable, for the duration of the stop.”  (Arizona v. Johnson (2009) 555 U.S. 323, 333.) Recognizing the inherent dangerousness of any traffic stop, the High Court has noted that the “risk of harm to both the police and the occupants is minimized if the officers (are allowed to) routinely exercise unquestioned command of the situation.”  (Maryland v. Wilson (1977) 519 U.S. 408, 414, quoting Michigan v. Summers (1981) 452 U.S. 692, 702–703.)  With such safety concerns in mind, the U.S. Supreme Court has ruled that a police officer may order the driver to get out of the vehicle pending the completion of the traffic stop if, in the officer’s judgment, it is safer to do so under the circumstances. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111.)  The Mimms rule has been extended to ordering passengers to get out of a lawfully stopped vehicle (Maryland v. Wilson, supra, at p. 410.), it being noted in Wilson that “the presence of more than one occupant of the vehicle increases the possible sources of harm to the officer.” (Id. at p. 413.)   Noting authority for the argument that the need for imposing upon a passenger’s “personal liberty” during a traffic stop is “stronger than that for the driver,” the California Supreme Court in this new case ruled that requiring a passenger to remain in the vehicle during the duration of the traffic stop does not violate the Fourth Amendment.  Per the Court:  “Under (Arizona v.) Johnson (supra), his (i.e., defendant’s) temporary seizure was reasonable for the duration of the stop, and Deputy Sorenson ‘surely was not constitutionally required to give [McDaniel] an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, [the officer] was not permitting a dangerous person to get behind [him].’” (Citing Johnson, supra, at p. 334.)  It was therefore not a Fourth Amendment violation for Deputy Sorenson to order defendant to remain in the vehicle.  The lawfulness of the resulting patdown for weapons was not challenged. 

(2)  The Issue of Proving Special Circumstances and Factors in Aggravation:  As noted, the instance case is a death penalty (or “capital”) murder case.  In any capital case, in addition to a violation of first degree murder, the People must allege and prove one or more “special circumstances.”  (As listed in P.C. § 192.2(a)(1)-(22).)  If the defendant is found guilty of first degree murder (per P.C. §§ 187(a), 189(a), or 189.1), and the jury determines one or more special circumstances to be true (per P.C. § 190.4(a))—the standard for both issues being “proof beyond a reasonable doubt”—then defendant’s sentence is elevated from the indeterminate sentence of “25-years-to-life” to either “life without the possibility of parole,” or death (P.C. §§ 190.2(a) & 190.3).  The determination whether a defendant’s ultimate sentence is to be life without parole, or death, is made in a second—or “penalty phase”—of the trial.  (P.C. § 190(a))  In the penalty phase, the prosecution is to introduce evidence of “aggravating factors” while, at the same time, defendant has the opportunity to provide evidence of any factors in mitigation.  (See P.C. § 190.3, “factors (a)” through “(k)”.)  In this case, the jury heard evidence during the penalty phase of “numerous instances of aggravating evidence” (i.e., “factor (b)”) which included ten instances of past crimes (“factor (c)”).  The issue raised in this case was whether it is constitutionally required that a jury, in the penalty phase of a capital case, unanimously find the existence of such “aggravating factors,” and whether such findings must be proved “beyond a reasonable doubt.” 

(2a) Unanimity:  Penal Code § 1042 provides that “issues of fact shall be tried in the manner provided in Article I Section 16 of the Constitution of this state.” Article I, section 16 provides: “Trial by jury is an inviolate right and shall be secured to all, . . .” Together these provisions have been held to codify a right to “juror unanimity” on “issues of fact” in criminal trials.  Defendant’s argument on appeal was that this state law principle, grounded in article I, section 16 of the California Constitution, also requires unanimity among the penalty phase jurors in order to find the existence of any particular aggravating factor, at least when such a factor is disputed.  Despite the Attorney General’s concession that such a requirement would add validity to a death sentence, and the Court’s agreement that this wouldn’t be a bad idea, the Court ultimately held that such a requirement is not mandated by state law.  The California Supreme Court has previously held that jury unanimity on the existence of aggravating factors in the penalty phase of a death penalty case is not required under the state Constitution. (See, e.g., People v. Hartsch (2010) 49 Cal.4th 472, 515.)  The U.S. Supreme Court, applying Sixth Amendment principles, has held that any fact (other than the fact of a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be found by a unanimous jury and proved beyond a reasonable doubt.  (See Apprendi v. New Jersey (2000) 530 U.S. 466.)  The California Supreme Court, however, has ruled that Apprendi does not apply to the determination of aggravating factors in a California death penalty case.  Under California law; “the jury as a whole need not find any one aggravating factor to exist,” so long as it determines that overall, the aggravating factors outweigh the mitigating factors. The penalty determination involves the “free weighing of all the factors relating to the defendant’s culpability.”  That is because a determination between “death” and “life without parole” does not involve an “increase (in) the penalty for a crime beyond the prescribed statutory maximum.”  (People v. Snow (2003) 30 Cal.4th 43.)  The Court further noted that there is a difference between (1) the guilt phase of a capital case where “special circumstances” must be found beyond a reasonable doubt by a unanimous jury verdict in order to increase the potential sentence from “25-year-to-life” to “life without the possibility of parole or death,” and (2) the penalty phase determination of “life without parole,” or “death;” the latter considered not to be a an increase in the penalty.  In sum, the Court held that “neither article I, section 16 of the California Constitution nor Penal Code section 1042 provides a basis to require unanimity in the jury’s determination of factually disputed aggravating circumstances.” 

(2b) Burden of Proof:  California law requires that the existence of aggravating factors at the penalty phase of a capital murder case need be proved only by a “preponderance of the evidence,” and not “beyond a reasonable doubt.”  (People v. Hartsch, supra, 49 Cal.4th at p. 515.)  Defendant, on appeal, challenged this theory, arguing that in order to choose “death” over “life without the possibility of parole,” a jury must find that aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt.  Noting that this issue has not yet been “fully considered,” the Court ruled, nonetheless, that a jury’s recommendation of death over life without parole is not one that must be supported by the “beyond a reasonable doubt” standard.  What it comes down to, per the Court, is whether a jury’s determination of the appropriate penalty constitutes “factfinding.”  Even assuming that any factfinding function assigned to a jury requires proof beyond a reasonable doubt, the Court concluded that determining a defendant’s penalty is not part of the factfinding process.  “(W)e conclude that the jury’s ultimate decision selecting the penalty in a capital case does not constitute ‘factfinding’ in any relevant sense.”  Also, referring again to Penal Code § 1042 and Article I Section 16 of the California Constitution, guaranteeing to a defendant a trial by a jury in a criminal case, the Court held once more that these provisions are not to be interpreted to guarantee a criminal defendant a “beyond a reasonable doubt” standard in the determination of the appropriate penalty.  As such, the Court ruled that a jury’s determination by a “preponderance of the evidence” that death is the appropriate sentence in a capital case is constitutionally sufficient.   

I included the penalty phase “aggravating factors” issue in this brief partially because this issue is of primary importance to prosecutors, judges, and criminal defense attorneys.  And while not directly effecting what cops do in the field, as an important topic, it wouldn’t hurt law enforcement to at least be familiar with the concept.  It is also an extremely important legal point for which this new California Supreme Court decision will be known in the years to come.  That having been said, prosecutors should also note that California Supreme Court Justice Goodwin Liu, who authored this decision, also wrote an 18-page concurring opinion to his own opinion, suggesting strongly that California’s death determination procedures, as discussed in his primary opinion, may in fact be an unconstitutional violation of the Sixth Amendment and contrary to the dictates of the U.S. Supreme Court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466.  As no more than a “concurring opinion,” and not adopted by any of the other six justices, Justice Liu’s opinions as expressed in his concurring opinion is not the law.  But if it ever becomes the law, we can expect just about every killer on death row to be arguing that such a drastic change in the law affects his or her death sentence.  So we have to expect defense attorneys to cite liberally from Justice Liu’s concurring opinion in future death penalty cases.   On the issue of requiring defendant to remain in the vehicle, although there is no U.S. Supreme Court case specifically holding that officers may demand that either the driver or passengers remain in a vehicle stopped for a traffic infraction, it was noted in a dissenting opinion in Pennsylvania v. Mimms, supra, in a footnote (pg. 119, fn. 10), that studies have found that it is safer for an officer during a traffic stop to require the driver to remain in his vehicle.  The Ninth Circuit is in accord with this conclusion, extending the rule to passengers, and finding that the officer’s safety outweighs the minimal intrusion involved in maintaining the status quo by returning a passenger to where he was in the car.  (United States v. Williams (9th Cir. 2005) 419 F.3rd 1029.)  In a footnote in Williams (pg. 1032, fn. 2), the Ninth Circuit cites state cases from across the nation (other than California) that agree.   Under the same rationale, some other federal circuit courts have ruled that an officer may order a passenger to remain in the vehicle, at least where the passenger has failed to express an intent to simply leave the scene, or when the passenger is interfering with the officer’s contact with the driver.  (See Rogala v. District of Columbia (D.C. Cir. 1998) 161 F.3rd 44; and United States v. Moorefield (3rd Cir. 1997) 111 F.3rd 10, 13.)  And lastly, in People v. Castellon (1999) 76 Cal.App.4th 1369, California’s Fourth District Court of Appeal (Div. 3; Orange County) upheld the lawfulness of an officer’s order to a passenger to remain in the vehicle:  Per the Court:  “(W)e will not second-guess (the officer’s) reasonable in-the-field call; it was for the officer to decide whether his personal safety was better preserved by ordering Castellon to stay inside the car or by ordering him out of the vehicle;” disagreeing on this issue with the Sixth District Court of Appeal in People v. Gonzalez (1992) 7 Cal.App.4th 381, which held to the contrary.  Inexplicably, none of this authority was cited by the California Supreme Court in this new case.

• Miranda and the Non-Custodial Interrogation:
• The Beheler Admonishment:

A Beheler admonishment, telling a suspect that he is not under arrest and is free to go, at least under the right circumstances, avoids the need to Mirandize a criminal suspect before questioning him.

Defendant Robert William Potter had been sexually molested by an uncle when he was 12 or 13 years old.  He also engaged in “inappropriate sexual contact” with his brother and sister when he was still a child, and then again with his sister when he was a little older.  None of this, apparently, was ever revealed.  Defendant eventually married and had several children, including a daughter referred to here simply as “H.”  Over the first five years of H.’s life, defendant and his wife separated several times.  Once, in 2015 when H. was three years old, she’d told her mother that defendant had put his penis in her mouth (calling it the “popsicle game.”).  But H. refused to talk about it when interviewed by counselors at the “special assault forensic evaluation” (SAFE) center, and defendant denied the accusation.  So defendant’s wife let him back into their lives, although not for long.  In March, 2017, when H. was five years old, she again complained about being sexually abused by defendant.  This time, she was able to talk about it with a police officer and then again to counselors at the SAFE center.  So defendant’s wife took the children (H. and the other sibling, K.), and left him.  Following up on this complaint, Detective Jenny Wirtz called defendant via telephone on December 5, 2017, and asked him if he would agree to come down to the police station for an interview.  Defendant said that he would.  But before this conversation was over, Detective Wirtz asked defendant if he’d ever been sexually assaulted in his past.  Defendant said that he had, telling Detective Wirtz about the incidents with his uncle and siblings.  Told that “(t)here's been some allegations,” defendant responded that he had not spoken to H.’s mother since she “took ’em away,” adding: “So I—I have no information on anything.”  Talking briefly about the allegations H. had made against him, defendant denied any wrongdoing. While continuing to deny that he’d molested his daughter, defendant eventually agreed to come to the station to undergo a polygraph examination.  He finally came to the station two weeks later—December 19th—and was placed in an interview room.  He was contacted by Detective Konrad VonSchoech who was to conduct the pre-polygraph interview.  Detective VonSchoech immediately told defendant that the interview was completely voluntary, adding “you don’t have to talk to me if you don’t want.”  Defendant responded: “I got you.”  But to be sure defendant understood, Detective VonSchoech further told defendant:  “You can stop this anytime you want and walk out, there's the door.”  Acknowledging that the door was closed, Detective VonSchoech explained that it was closed “for privacy, but it’s unlocked.” Defendant stated: “Right I know what you mean.” The detective continued: “You can walk out anytime you want, right?”  From this point on, in a 30-minute interview, the Detective VonSchoech discussed with defendant H.’s allegations in a manner that apparently made defendant feel like the detective was on his side, and that the molest was not all defendant’s fault, given his prior history of being abused himself.  The questioning centered on the fact that defendant had never been given the opportunity to receive treatment for the problems his abuse had caused him, and that they only way his daughter (who he continually claimed to love very much) could recover from her having been abused by defendant would be for defendant to acknowledge what he had done.  Defendant eventually admitted to molesting H.  He was then moved to a second interview room where Detective Wirtz spoke with him for about an hour and a half in two separate interviews.  At the initiation of the first interview, Detective Wirtz advised defendant that that the door to the room was unlocked and that he was free to leave.  Defendant repeated his admission to having committed at least one incident of oral copulation with H., and then adding to his confession an admission to five other similar incidents.  At Detective Wirtz’s suggestion, defendant also wrote an apology to H. for having molested her.  Although intending for this interview to be recorded, it was soon discovered that the recorder wasn’t working.  So defendant submitted to a third, recorded, interview.  At the beginning of this third interview, Detective Wirtz told defendant: “Um, so again thank you for coming in voluntarily. You're not under arrest. The door’s unlocked. You[’re] free to go, um, at any time.”  Defendant thereafter repeated his confession to the six separate incidents where he’d orally copulated H.  After having been questioned for a total of under two hours in the three interviews described above, defendant was released to return home.  He was physically arrested three days later.  Charged in state court, defendant challenged the admission into evidence of his three confessions, arguing that his Fifth Amendment self-incrimination rights had been violated because he had not been advised of his Miranda rights.  The trial court denied his motion, admitting into evidence his confessions. Convicted of one count of oral copulation with a child 10 years of age or younger, defendant was sentenced to serve an indeterminate term of 15 years to life in state prison.  He appealed.

The Third District Court of Appeal affirmed.  Acknowledging that defendant was never read his Miranda rights, the issue on appeal was whether his questioning by Detectives Wirtz and VonSchoech constituted a “custodial interrogation.”  Defendant argued that his questioning was in fact “custodial,” and that without a Miranda admonishment and waiver, his confessions should have been suppressed.  The Court disagreed.  The legal standards on this issue are now quite well settled. 

“An interrogation is custodial, for purposes of requiring advisements under Miranda, when ‘a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.’ [Citation.] Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] When there has been no formal arrest, the question is how a reasonable person in the defendant’s position would have understood his [or her] situation. [Citation] All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present. [Citation.]” (Quoting People v. Moore (2011) 51 Cal.4th 386, 394–395.)

Applying these standards, the Court noted that Detective Wirtz’s initial contact with defendant over the phone did not involve custody, and defendant did not argue otherwise.  (Although not an issue in this case, there is actually case law that says this; i.e., Saleh v. Fleming (9th Cir. 2008) 512 F.3rd 548.)  As to defendant’s subsequent questioning in the three separate interviews, all while at the police station, the Court considered the following.  The fact that the questioning in issue all took place at a police station is a factor tending to indicate that defendant was in fact in “Miranda-custody” at the time, and should have been Mirandized.   So was the fact that defendant was questioned as a suspect, as opposed to a mere witness.  However, the Court found these two factors to be out-weighed by other factors to the contrary.  First, defendant went to the police station voluntarily, hoping, perhaps, to outsmart the polygraph machine.  More importantly, defendant was expressly told a number of times by both Detectives Wirtz and VonSchoech that he was not under arrest, he did not have to talk with the detectives, he was free to go at any time, and that the door to the interview room, although closed for purposes of privacy, was not locked.  Further, he was neither handcuffed nor otherwise restrained in any way.  None of the interrogations were “particularly intense or confrontational,” the trial court characterizing the questioning sessions, lasting less than two hours in total, to be more akin to a “therapy session” than a typical interrogation.  It was also a factor that defendant was not confronted with an assertion that the police knew he was guilty, that they had evidence to prove it, and that any denials were useless.  And although Detective “VonSchoech’s professed understanding and sympathy for defendant’s situation were undoubtedly an interrogation tactic designed elicit a confession, and while the detective did in fact indicate that he believed H.’s allegations and implored defendant to tell him the truth about molesting his daughter, the Court also noted that “police expressions of suspicion, with no other evidence of a restraint on the person’s freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody.”  Based upon the “totality of the circumstances,” the Court determined that defendant was not in custody for purposes of Miranda, and that the trial court had therefore not abused its discretion in finding that a Miranda admonishment and waiver was legally unnecessary.

Police interrogators telling a criminal suspect that he is not under arrest and that he is free to go in preparation to an interrogation is commonly referred to as a “Beheler admonishment,” based upon the landmark U.S. Supreme Court decision of California v. Beheler (1983) 463 U.S. 1121.  The Court here never referred to what Detectives Wirtz and VonSchoech did as a “Beheler admonishment,” but that’s exactly what the detectives did.  And the detectives laid it on thick, which has been shown to be a good idea considering the fact that a poor job at attempting to give a weak Beheler admonishment will sometimes result in the suppression of a defendant’s subsequent confession.  (E.g., see In re Matthew W.  (Jul. 8, 2021) 66 Cal.App.5th 392.)  Given the rule that whether or not a person is in custody for purposes of Miranda depends upon whether a “reasonable person, under the circumstances, would have believed he was in custody,” any attempt to take the custody out of an interrogation depends upon the court’s consideration of all the surrounding circumstances, and how it would have affected a reasonable person.  Courts have ruled that a number of factors need to be considered in making this decision.  (See pages 539-540 of this decision, and my brief on In re Matthew; Cal. Legal Update, Vol. 26, #11, Oct. 20, 2021.)  As illustrated in Matthew W., and as discussed in my brief of that case, Beheler admonishments aren’t always successful and shouldn’t be attempted as a matter of routine.  Unfortunately, some police interrogators have made Beheler their go-to interrogation tactic, with a proper Miranda admonishment and waiver the exception. Recognizing that maybe 90% or more of the criminal suspects you intend to question will waive their Miranda rights and talk to you, my suggestion has always been that it is better to save the Beheler admonishment alternative for the rare suspect who, given his attitude and overt lack of cooperation, is likely to invoke.  This helps to eliminate having to litigate an issue that maybe 25% of the time we lose.  This case here is an example of one we happen to have won. But in my Miranda outline, I have nine other appellate court cases where we lost; and those are only the ones that made it to an appellate court.  I can send you those cases, or the entire Miranda outline, if you want it.