Top 7 Police Mistakes in Criminal Investigations

Police can make minor to serious mistakes when conducting an investigation. Below are the top 7.

Conducting a Search, Stop or Arrest Without a Warrant, Consent or Probable Cause

Your first encounter with law enforcement may be in a car, on the street, at someone else’s residence, at a business, or in your home or office. You are never under any obligation to talk to police or even to identify yourself, though you are required to produce identification documents such as a driver’s license or photo ID or other documents, if stopped while in your car or if you are placed under arrest.

In California, you cannot be arrested simply for refusing to show identification.  But police can make critical errors in conducting a stop or when searching or arresting someone without a warrant.

 
Lack of Probable Cause or Reasonable Suspicion to Stop and Search

Before a police officer can stop, search or arrest you, he or she must have probable cause to do so. If on the street or in a car, police must have a reason for stopping you based on probable cause. This is defined in various ways, but it is essentially “an honest and strong suspicion or a state of facts that would cause a prudent person to believe that a suspect committed the crime under investigation”1. Police cannot stop you because you look suspicious or are of a particular color, race or ethnic origin.

However, there is a different standard for what is known as “stop and frisk.” An officer is allowed to stop you on the street and search or pat you down for weapons if officers have  “…concrete facts to rely on that a reasonable person would have considered suspicious to some degree”2. A Terry search is based on reasonable suspicion, a variant to probable cause and a lesser standard. If police saw you in the midst of a street transaction with known drug dealers, or saw you running from a store holding unpackaged items in your hand, this would likely generate reasonable suspicion and justify a stop.

Essentially, there must be hard facts to back up an officer’s claim or suspicion that you were or were engaging in a crime to stop and search you. In most cases, the search is a pretense to finding illegal drugs on the suspect.

In many detentions, searches, or arrests, officers lack such facts and fabricate or exaggerate the circumstances to justify the intrusion and the discovery of a firearm or illegal drugs on the defendant. New York City once had a watered down stop and frisk policy designed to catch criminals on the streets, although studies showed that about 80% of those detained and searched were guilty of no crime and it had no deterrent effect on reducing violent crime. Further, 85% of those stopped were Black or Latino. A court later ruled the policy unconstitutional3.

All of this is in doubt since a 2016 high court ruling in a Utah case where an officer found methamphetamine on a defendant after arresting him for having an outstanding warrant. Although the initial investigatory stop was unlawful, the U.S. Supreme Court held that because the officer’s misconduct was not a flagrant violation of the defendant’s rights and that the search was pursuant to a valid arrest based on the outstanding warrant, the evidence was admissible. Accordingly, the link between the unconstitutional stop and the discovered evidence found during the legal arrest was too attenuated or remote to exclude the evidence4. In other words, an officer who stops a suspect on the street may demand identification and if an outstanding warrant is discovered, may search the suspect and any contraband that is found is admissible. But if nothing is found, the suspect is free to leave although his or her privacy has been intruded.

The only mistake an officer might make is flagrantly violating the defendant’s rights such as hauling the person out of a residence or vehicle, throwing him to the ground, and searching the individual. Or, if no outstanding warrant is found, searching the person regardless. In this case, the court might rule that the officer’s misconduct was too flagrant and/or that the link between the unlawful stop and the search was not too remote or attenuated so that any incriminating evidence found would be inadmissible.

Unlawful Arrests In the Home

In the absence of an arrest warrant, police cannot arrest a person unless the officer has reasonable cause to believe that person has committed a felony. Officers in California are also permitted to arrest a person on a misdemeanor charge even though not committed in the officer’s presence, which is departure from common law, for offenses such as DUI, domestic violence, and some gun and assault charges.

Arrests within a person’s home are not permitted without a warrant, even upon probable cause, unless there are exigent circumstances5. This extends to persons arrested in someone else’s residence6. Exigent circumstances refers to emergency situations that require immediate action to prevent imminent danger to life or serious damage to property, or to prevent or forestall the imminent escape of a suspect or destruction of evidence7. Although the court essentially relies on the officer’s discretion to decide whether there are exigent circumstances to justify an arrest in a dwelling without a warrant, the court does look to certain facts that existed at the time of the arrest8:

  • A grave offense is involved (physical violence)
  • Suspect is believed to be armed
  • There is a clear showing of probable cause
  • There exists a strong showing that the suspect is on the premises
  • There is a strong likelihood the suspect will escape if not immediately apprehended
  • The entry is made peaceably, even though no consent was given to enter

Errors by police occur when they are unable to make a credible showing that the defendant was either on the premises or was armed, or that he or she would escape if not placed under arrest. If consent was not given, officers may not use force to enter and arrest the suspect without a warrant. If a court deems the arrest unlawful, all charges stemming from that arrest may be dismissed.

Unlawful Search and Seizure

Police must normally have a warrant to search and seize property or evidence. A search without a warrant is presumed invalid, though there are numerous exceptions to the warrant requirement9

Police can search you if you consent and officers will often testify that a defendant gave consent for police to search their car, office, or home10. In many such cases, the defendants were threatened if they did not consent. However, if you can show that you have had previous experience with police, know the law, have witnesses, and would never have consented, then a judge might find you credible. Your defense attorney may also have found the investigating or arresting officer to have had similar complaints about such conduct leveled against him or her in the past11. If so, this can support a claim that consent was never given to enter or to search the premises.

Otherwise, a valid search warrant can only be obtained based on:

  • A sworn, detailed affidavit by a police officer before a neutral magistrate or judge
  • Probable cause that a crime has been committed
  • Language that describes with reasonable particularity the place to be searched and the items or person to be seized
  • And served within normal business hours (7 am and 10 pm) although a judge can authorize it at any time of day or night for good cause

A California search warrant must be executed within 10-days or it becomes void. A judge can re-issue one once the 10-days has expired so long as there is continuing probable cause.

Other mistakes police make when wanting to make an arrest or search include:

  1. Fabricating or exaggerating facts to find probable cause to issue the warrant
  2. Not being specific in the items to be seized
  3. Searching for items not within the scope of the warrant
  4. Seizing items not within the scope of the warrant
  5. Serving the warrant outside the hours of its scope
  6. Serving the wrong person or at the wrong location

A warrant or the results of a search can still be held valid if the police acted in good faith in its execution or in the search without a valid warrant12. For example, the warrant indicated an incorrect street number but the search and the evidence seized was at a residence on the same street where the crime was reportedly committed. Or, an officer may have mistakenly assumed that a motorist had violated a traffic law such as one headlight being out while the law required that both be out, and stopped the car and found cocaine in plain sight. In a similar cases, the courts have allowed the seized evidence to be used.

Otherwise, police are prohibited from rummaging through a person’s belongings to look for computer records for example since they are unlikely to be found there.

Neglecting to Read Arrestees Their Miranda Rights

Miranda rights are those concerning a defendant’s right against self-incrimination and to have the assistance of counsel when being questioned or interrogated by police13.

Most people believe that when they are arrested, the police must read them their Miranda rights or the arrest will be declared invalid or illegal. This is untrue since your Miranda rights need only be read to you before the police question you and you are in custody14. These rights consist of:

  • Your right to remain silent
  • That anything you say can be used against you in a court of law
  • Your right to consult with an attorney and have that attorney present with you during questioning
  • That if you cannot afford an attorney, the court will appoint one for you

Also, the defendant must have understood the warnings.

You are considered under arrest once you are in custody or are not free to leave, even if the police have not said anything to you about being under arrest. At this point, the police may or may not ask you to make a statement but you are not required to do so. But if you suddenly blurt out an incriminating statement, it will likely be used against you since the police had not yet asked you to make a statement.

Police often take precautions before questioning a person by recording the warning on tape before questioning or by having the defendant sign a document to that effect. But if you were considered to be in custody and no Miranda warning was given, then any statements you make cannot be used against you.

Police make the mistake of assuming you are not in custody. If you are handcuffed, you are obviously not free to leave, but this is not necessary. Being in custody can also mean:

  • Being in a locked room
  • Having asked and been told you are not free to leave yet
  • Or your freedom of action is restricted in a significant way

Most mistakes officers make, however, are after the defendant has asserted his right to remain silent or that he wishes to have an attorney present. At that point, all questioning must cease. If they persist or threaten the defendant, any statements elicited will probably be ruled inadmissible.

However, can police later ask the defendant to make a statement or to talk? If so, do they have to reiterate or repeat the Miranda warnings?

If you wish to waive your rights and talk but during questioning are undecided about continuing, then you must be clear that you wish to assert your 5th Amendment right to remain silent or that you want an attorney present. If you merely state that “maybe I should talk to a lawyer,” this is not an unequivocal assertion of your right and police may continue to question you without having to repeat your Miranda rights.

And, if you did waive your Miranda rights and police return the following day and begin questioning you, they may not have to re-advise you.

Police need to be cautious if they do not re-advise a defendant of Miranda rights if they wish to question the defendant at a later time. A court will look at these factors in determining if the defendant’s rights were violated after an earlier valid Miranda waiver15:

  1. the amount of time that has passed since the initial waiver
  2. if there is a change in the identify of the interrogator
  3. was the defendant reminded of the prior waiver
  4. the sophistication of the defendant and prior involvement with law enforcement
  5. an indication that the defendant appreciated and understood the waiver of rights

Mistakes occur when a different law enforcement officer meets with the defendant 24-hours or more later to question the defendant, does not read the Miranda warnings to the defendant, and fails to record any discussion with the defendant about a prior advisement and that the defendant understood it.

Interogation Of Minors

If a minor has been arrested or taken into custody, then California law requires that police read the minor his/her or Miranda rights, regardless if they intend to interrogate the defendant. If brought to juvenile hall, the probation officer is required to read the minor and parents the Miranda warnings. If the minor is questioned without having been read these rights and makes incriminating statements, they can be suppressed.

Courts will also look to see if a minor gave a statement voluntarily or was coerced, even if the Miranda warnings were given. The child’s age and maturity are considered as are other circumstances when the statement was made. A parent is not required to be present when the minor is being questioned but a parent who is present can refuse to allow the child to be questioned. If the child asks for either a lawyer or a parent to be present, then questioning must stop. If the child is not read the Miranda warnings and gives an incriminating statement, courts will examine the overall circumstances to determine if the child was aware that he or she was free to leave.

If the minor’s request for a lawyer or parent to be present was denied and then made an incriminating statement, the court will look at the overall circumstances to determine if the statement was given voluntarily. However, the age of the minor is an important consideration since a child may not fully understand that he or she is free to not answer questions.16. In any case, statements given by minors while at a police station or when confronted by several officers or detectives are suspect unless Miranda warnings are at least given since a child may not understand that he or she may have been free to leave.

Asserting Right to Counsel

Generally, if the defendant states that he wants to assert his right to counsel, then officers may not re-approach the defendant and attempt to question him or her unless the attorney is present when the defendant waives his or her right to remain silent. Even if the officer returns a few hours later or the next day, repeats the Miranda rights to the defendant, and the defendant makes incriminating statements, these cannot be used as evidence unless the defendant unequivocally and voluntarily waives those rights.17. For example, if the defendant happens to re-initiate the interrogation, regardless if he advised the officers that he wished to remain silent or wanted to speak to an attorney, then the officer must re-advise the defendant of his Miranda rights and seek a waiver18.

If the defendant has been released from custody, though, then the process starts anew. If the person is subsequently detained and held for custodial interrogation, the Miranda warnings must be read again.

Coercion and Involuntary Statements

An involuntary statement or one coerced by police occurs when the defendant’s free will has been overcome19. Your free will may be compromised if you are in intense pain and an officer persists in questioning you. But there are other less obvious situations which a court could interpret as being intimidating and coercive enough in determining that your free will was overcome when you made an incriminating statement. This can occur even if you have been read your Miranda rights and waived them.

Factors that courts review if coercion is alleged in obtaining a statement include:

  1. Length of the interrogation
  2. The defendant’s age, maturity or mental health
  3. Promises of leniency
  4. Depriving you of food, water or bathroom use
  5. Interrogating you at gunpoint
  6. Striking you and threatening more physical harm
  7. Threats of no food, bathroom breaks, sleep, or that harm will come to an intimate partner
  8. Possibly questioning you while you are heavily intoxicated or under the influence of drugs so long as you were unable to think clearly
  9. Continuing to question you after you have asserted your rights

However, lying to you that evidence has been found to convict you is not considered coercion20. Getting you to talk while lying about not having the discussion recorded is not deception in forcing you to answer questions21.

Writing a Bare Bones Police Report and Leaving Out Important Details

A police report that leaves out important details can come back to haunt the officer and can hinder a successful prosecution. If the prosecutor decides to use a bare bones police report, a savvy criminal defense lawyer can exploit this to create reasonable doubt in the minds of a jury. It could also create a scenario where a defense attorney can argue lack of probable cause and have a court dismiss charges before it ever gets to a jury22.

Police reports are vital in prosecuting defendants. They contain relevant information about an officer’s observations while investigating a case as well as informed opinions based on other officers’ observations and the evidence found at the scene. A witness’ statements are often taken at the scene or shortly after the offense was committed and while the events were still fresh in the witness’ mind.

It can also demonstrate the chain of evidence of where the evidence was found and how it was handled. If there is no clear record of how the evidence was discovered, its location, and that it was secured, then a court could determine that the chain of evidence was broken and cannot be used.

Officers also rely on the police report when testifying at preliminary hearings, motions, or at trials since it may be weeks or months since the event and arrest took place. Many officers are involved in dozens or even hundreds of investigations per year and cannot be expected to recall the details of each one.

A lazy or incompetent officer who provides only perfunctory and basic facts and observations about an incident and arrest is often doing the defendant an unintended favor. For example, a report with the bare minimum of facts and observations can be used by the defense to question or point out the lack of certain important information:

  • Weather conditions at the time
  • Description of the vehicles, firearm, drugs or other contraband
  • Where the witness was situated when the offense was observed
  • Content of witness statements
  • Demeanor of the defendant
  • Who else was present at the scene
  • Where certain evidence was found and its condition
  • Who had access to the evidence
  • Who had access to the crime scene
  • How was the crime scene secured
  • That the officer failed to include important facts as taught in the police academy or during training
  • That certain allegations made against the defendant are not in the report
  • That if certain facts were vital or important, they would have been included in the report
  • That a prosecutor must rely on the police report
  • That police officers use their reports to refresh their recollections and not have to rely on memory

If a police report lacks essential facts, then the defense attorney can suggest that certain facts not included may have been exculpatory or suggestive of the defendant’s innocence or that events may or may not have occurred as alleged since there is no record of it.

Juries will often not tolerate shoddy police work or practices and may feel that an officer is hiding something. Since a criminal conviction requires unanimity in finding a defendant guilty, only one juror needs to find reasonable doubt.

Not Interviewing And/Or Obtaining Contact Information For Percipient Witnesses

Percipient witnesses are those persons who directly observed an event such as having seen the defendant at the scene of the crime or fleeing it, saw and heard the defendant threatening the victim, or observed the defendant holding a piece of incriminating evidence.  A percipient witness may also be someone who can provide some exculpatory evidence that helps the defense.

Memories Fade

Memories or observations of events vary widely among witnesses to the same event and are known to fade over time, or be influenced by news accounts or statements by other witnesses or observers. By interviewing a witness at the scene, an officer can preserve these memories of the event without these influences. If the witness is needed at a future time but is unable to recall certain facts, the previous statement can be used to refresh the witness’ recollection. If contact information for the witness is not obtained, it is probable that if the matter goes to trial, an essential witness cannot be found the charges may have to be dropped.

Whether from lack of training, laziness, or incompetence, officers do fail to find or to interview percipient witnesses who are known to them and whose statements could support other evidence or which could exonerate a defendant. Even if the officer lacked the time to interview a particular witness, having contact information to interview the witness shortly thereafter or to have the individual available to testify at a preliminary hearing or trial is vital to a successful prosecution.

Prosecutors Requirements

Prosecutors are required to turn over the names of witnesses, statements taken, and all other evidence, incriminating or exculpatory, to the defendant’s attorney23. It is prosecutorial misconduct to not turn over exculpatory evidence, or that evidence that could exonerate the defendant.

If it was material, the omission could result in the court throwing out a conviction and requiring a new trial24.  Recent changes in California law even make it a crime for a prosecutor to intentionally fail to disclose evidence that can help the defense or point to the defendant’s innocence.

Police could intentionally withhold the name of a witness or fail to interview a witness whose testimony would be favorable to the defendant since they already have a suspect in custody and evidence to convict him or her. They could also fail to name or interview a witness whose testimony might impugn the credibility of a witness deemed favorable to the prosecution.

By releasing the name and allowing the defense to interview the witness, they might have to focus their investigation on other suspects and/or release a defendant they suspect has committed other unrelated crimes. It could also create an unfavorable impression on how the police have conducted their investigation by failing to follow up on other leads or witnesses to find the actual perpetrator. This could create reasonable doubt in the minds of a jury and lead to an acquittal for the defendant.

Not Booking Important Evidence Items Into Evidence

As indicated above, the prosecution is required to disclose information that could impeach the credibility of its own witnesses or exonerate the defendant. Evidence that is found at the crime scene or elsewhere that is relevant to the case is required to be booked into evidence so that it may be preserved and remain untainted. Once booked, it is also subject to being disclosed to the defendant’s attorney.

Evidence may include
  • Items used in the commission of a crime (weapons or vehicles)
  • Items that are the subject of a crime such as contraband
  • DNA evidence
  • Body-worn camera recordings
  • Photographs
  • Recordings of statements taken or obtained by others
  • Identity of witnesses
  • Witness statements
  • Blood test results
  • Breath sample results
  • Documents purported as incriminating or that could be exculpatory in nature
  • Objects at scene that may identify or lead to another suspect

Police may fail to book certain evidence, either because of a mistake or because they didn’t believe the evidence was relevant to the case.  In rare circumstances, police officers may intentionally fail to book important items into evidence, however the more likely scenario is that they overlooked a crucial item in some way.

Example

An example is that of a police shooting of an unarmed suspect whom he claims attacked the officer with what appeared to be a weapon. Body-cam recordings that were not booked into evidence reveal that the suspect had his hands up and was willing to be taken into custody.

If such evidence was available and known to police and not booked into evidence, but was later discovered, the defendant’s conviction could be dismissed.

The officer involved could also be subject to criminal charges and the police department to a civil case for damages.

Not Following Proper Police Procedures to Ensure Chain of Custody

Whenever a unique or important piece of evidence is found such as a firearm, blood or DNA sample, the police must follow proper procedures in what is referred to as a “chain of evidence.”

The chain of evidence is what must be proved in a court of law to show what happened to the evidence from the time it was found to the point where it is introduced into evidence at the trial. The prosecution has the burden of proving chain of evidence and must demonstrate

  • The item or evidence is what it purports to be (blood or DNA sample from the defendant; bullet from the gun used in the crime)
  • Who has possessed the item or evidence since it was taken from the scene or defendant
  • That it has been in constant possession of the police or other agency authorized to handle it
  • That the he evidence has remained in substantially the same condition from the time the person within the chain of custody took possession of it until it was transferred to another person or that it was in a secure storage area
  • The item was marked according to procedure and properly identified
Not Making a Clear Record of Items Seized or Where Said Items Were Taken

Police are trained at the academy and in subsequent trainings after becoming officers to carefully make a record of all evidence seized that includes where the evidence was taken. This constitutes the initiation or beginning of the chain of custody that must be documented up until the time the evidence is introduced.

Officers err when they either fail to make the record at the earliest opportunity or do make a record days or weeks later and must rely on faulty recollection. If several items were taken, the officer must describe each item and the area where it was found. Photos of the scene or testimony from other officers at the scene may conflict with the record made. If so, there exists a discrepancy or break in the chain of custody.

Break in the Chain of Custody

When a vital link in the chain of custody is broken or unaccounted for, the judge has a duty to exclude the evidence25.

Example

A police officer may have found a bloody glove at the scene and placed it in a plastic bag. However, the officer cannot state exactly where the glove was found, He may also be unable to state  to whom he gave the bag with the glove to after securing it. Or, the bag was left on top of a police vehicle and not placed in a secure locker so that multiple people had access to it.

If the procession of who had possession of the evidence and what was done to it cannot be shown, it is likely a judge will rule it inadmissible as it cannot be offered as it purports to be. A prosecutor has the burden when offering a piece of evidence of showing that it is “reasonably certain” that the evidence has not been altered26.

Suppression of Evidence

When an officer in charge of recovering the evidence, securing it, marking and identifying it, and ensuring that it is not altered fails to show that each link in the chain of possession is accounted for, then that evidence may be suppressed. Although a trial court has some discretion in determining if the break in the chain was material or vital, if it is just as likely as not that the evidence analyzed was not the evidence originally received, then the court must exclude it27.

If a trial court decides that though a break in the chain of evidence may have occurred, it was not a vital link or strong enough so that the “reasonably certain” threshold for its admissibility has been met by the prosecution. Still, a defense attorney can argue that the officer’s failure to properly document the items taken or where the items were taken gave the police an opportunity to plant or fabricate evidence. If anything, it shows incompetence by the police that likely extended to other areas of the investigation.

Escalating a Situation by Use of Force

While it seems that police are given the benefit of the doubt by judges and jurors when it comes to their actions in apprehending or arresting suspects or in serving a warrant, police misconduct in escalating a situation by the use of unnecessary force can lead to a civil suit against the police based on a violation of the defendant’s rights against unreasonable seizure under the 4th Amendment to the U.S. Constitution.

Still, a court will consider that in many cases, an officer is under intense pressure to decide within seconds if his safety or that of the public is in danger unless force is used under the circumstances.

Courts will examine what the officer was observing and/or knew at the scene. Officers may have to use force at times so long as it is necessary. If excessive force is alleged, police misconduct may lead to the prosecution offering a reduction in charges but this will not necessarily require a court to dismiss charges. Instead, a defendant may bring a civil law suit against the police including federal civil rights violations under U.S.C. Title 42, Section 1983. It can also lead to criminal charges against police for assault, manslaughter or homicide.

How Courts Approach Excessive Force

The seminal case in excessive use of force by police is Graham v. Connor (1989) 490 U.S. 386, wherein the court described how a court should approach the issue by making the following inquiry:

  1. What was the severity of the crime the officer was investigating?
  2. Whether the suspect presented an immediate threat to the safety of the officers or the public
  3. Whether the suspect was actively resisting arrest or attempting to escape

If the officer was aware of the suspect’s history of violence, mental illness or impairment due to drugs or alcohol, this is a vital factor in the officer having to resort to force28.

Civil Suit

However, police can easily misjudge a situation and escalate matters by resorting to excessive force when other means of effectuating the arrest could have been used. For instance, a civil suit against police may assert:

  • The use of force was disproportional to the person’s resistance
  • There was no urgent need to resolve the situation
  • The officer could have used less force and still accomplished the objective
  • The officer lacked training and competency in using the tools of force that were applied
  • The officer’s conduct was not objectively reasonable
  • The officer initiated the force

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Footnotes

  1. Beck v. Ohio (1964) 379 U.S. 89, 91 []
  2. Terry v. Ohio (1968) 392 U.S. 1, 21 []
  3. Floyd v. City of New York (2013) 959 F.Supp. 2d 668 []
  4. Utah v. Strief 136 S.Ct. 2056 []
  5. People v. Campa (1984) 36 Cal.3d 263, 27-277 []
  6. People v. Tillery (1979) 99 Cal.App. 3d 975, 978-979 []
  7. People v. Ramey (1976) 16 Cal.3d 263 []
  8. Dorman v. U.S. (D.C. Circuit 1970) 435 F.2d 385 []
  9. Riley v. California (2014) 134 S.Ct. 2473, 2482 []
  10. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 291 []
  11. Pitchess v. Superior Court (1974) 11 Cal.3d 531; Evidence Code 1043, 1045 EC []
  12. U.S. v. Leon (1984) 468 U.S. 897 []
  13. Miranda v. Arizona (1966) 384 U.S. 436 []
  14. California v. Beheler (1983) 463 U.S. 1121 []
  15. People v. Smith (2007) 40 Cal.4th 483 []
  16. J.D.B. v. North Carolina (2011) 564 U.S. 261 []
  17. Edwards v. Arizona (1981) 451 U.S. 477 []
  18. Oregon v. Bradshaw (1983) 462 U.S. 1039 []
  19. Rogers v. Richmond (1961) 365 U.S. 534, 540 []
  20. People v. Farnham (2002) 28 Cal.4th 107; Oregon v. Mathieson (1977) 429 U.S. 492 []
  21. People v. Sims (1993) 5 Cal.4th 405 []
  22. Penal Code § 995 []
  23. Brady v. Maryland (1963) 373 U.S. 83 []
  24. Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1593 []
  25. People v. Lucas (1995) 12 Cal.4th 415, 444 []
  26. People v. Catlin (2001) 26 Cal.4th 81, 134; People v. Herrera (2000) 83 Cal.App.4th 46, 61 []
  27. People v. Williams (1997) 16 Cal.4th 153, 196; People v. Jimenez (2008) 165 Cal.App.4th 75 []
  28. Krueger v. Fuhr (1993) 991 F.2d 435 []