Bell's Compendium

• AYON, ___ CA5 ___, ___ CR3 ___ (22) #H047360:

Ayon was driving in San Jose around 9:00 p.m. when he was stopped for a traffic violation. The police took his license and registration, and transmitted it to a dispatcher. About three and a half minutes into the stop, police ordered Ayon out of the car and patted him down. The dispatch came back on the license and registration. Both valid.

Officer asked Ayon for consent to search his car. Ayon refused. The officer handcuffed Ayon and told him he was detaining him “for my safety because of the way you’re acting.” After Ayon objected to being handcuffed for a traffic infraction, the officer again asserted he handcuffed Ayon for “officer safety because you’re being very aggressive.” The police then called for a dope-sniffing dog. It arrived almost thirteen minutes into the stop.

The dog alerted. police searched the car and found $6,200 hidden in a compartment under the driver’s side of the dashboard. An officer then discovered a secret compartment under the back seat of the car. The compartment had been designed to be opened with a secret switch, and the officer could not find the switch during the initial stop.

All this was captured on the body cams of the officers.

After taking Ayon into custody, the police took the car to the department garage, where they forced the compartment open. Inside, they found 1,132 grams of cocaine; 73.5 grams of methamphetamine; and an additional $10,000 in currency. The police never obtained any warrants for the search or arrest.

Ayon moves to suppress the evidence. Denied. The court found that under the totality of the circumstances, the police did not unduly or unreasonably prolong the detention. The court found “the officer’s actions were objectively reasonable under the circumstances of this particular case” and “the time spent interacting with the defendant before the dog determined probable cause” was objectively reasonable to pursue “legitimate investigative pursuits.”

The Court of Appeal, Per. Greenwood, P.J., reversed.

“A seizure for a traffic violation justifies a police investigation of that violation.” (Rodriguez v. U.S. (2015) 575 U.S. 348, 354 (Rodriguez).) A traffic stop begins once the vehicle is pulled over for investigation of the traffic violation. (People v. McDaniel (2021) 12 Cal.5th 97, 130.)

Because the traffic violation is the purpose of the stop, the stop “may ‘last no longer than is necessary to effectuate th[at] purpose.’ [Citation.]” (Rodriguez, supra, 575 U.S. at p. 354.) “[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, [citation] and attend to related safety concerns.” (Ibid.) “A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”

A part of the justification for prolonging the detention, the Officer alleged that Ayon was acting in a “hostile,” “aggressive,” “confrontational,” and “strange” manner. He blamed Ayon for prolonging the stop and claimed he suspected Ayon was using drugs based on this asserted behavior. He testified that he ordered the narcotics dog after he became suspicious that Ayon was under the influence of something.

But, as Warner Wolf used to say, “Let’s go to the videotape!”

[T] video shows Officer Williams requested a narcotics dog before conducting any purported sobriety checks, and the dog handler admitted he had been informed his presence would be required before the stop had even occurred. And Ayon’s conduct as documented by the videos is at odds with Officer Williams’s testimony. Although Ayon questioned why the police would ask to search his car and handcuff him in a routine stop for a traffic infraction, he was cooperative at all times. He showed no signs of hostility or aggression.

Reports of Miranda’s Death Have Been Greatly Exaggerated

On June 23 the Supreme Court released its opinion in Vega v. Tekoh, Docket #21-499. As summarized on SCOTUSblog:

During a March 2014 custodial interrogation of Terence Tekoh at his workplace regarding sexual assault allegations, Los Angeles County Sheriff’s Deputy Carlos Vega failed to give Tekoh a Miranda warning. Vega emerged from that interrogation with Tekoh’s handwritten statement that offered an apology for inappropriately touching the complainant. Tekoh was subsequently prosecuted for the alleged sexual assault, and at Tekoh’s criminal trial, the government introduced his un-Mirandized statement. The jury found Tekoh not guilty.

Tekoh then sued Vega and other defendants for civil damages, alleging that, per Miranda, the custodial interrogation violated his Fifth Amendment right against compelled self-incrimination. The U.S. Court of Appeals for the 9th Circuit agreed with Tekoh and held that the government’s use of the un-Mirandized statement provided a basis upon which Tekoh could seek civil damages under Section 1983.

The Supreme Court rejected the 9th Circuit’s decision.

According to the majority opinion written by Justice Samuel Alito (and joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett):

Miranda did not hold that a violation of the rules it established necessarily constitute a Fifth Amendment violation, and it is difficult to see how it could have held otherwise. For one thing, it is easy to imagine many situations in which an un-Mirandized suspect in custody may make self-incriminating statements without any hint of compulsion. In addition, the warnings that the Court required included components, such as notification of the right to have retained or appointed counsel present during questioning, that do not concern self-incrimination per se but are instead plainly designed to safeguard that right. And the same is true of Miranda’s detailed rules about the waiver of the right to remain silent and the right to an attorney. [Mirand] 384 U. S., at 474–479.

At no point in the opinion did the Court state that a violation of its new rules constituted a violation of the Fifth Amendment right against compelled self-incrimination. Instead, it claimed only that those rules were needed to safeguard that right during custodial interrogation.

The conclusion over at SCTOUSblog is dire:

Miranda, one of the increasingly few cultural and court canons that binds us, has been injured, perhaps fatally. What it stood to protect, the Fifth Amendment, now stands before us, newly naked, stripped of its heretofore powerful prophylactic. And in too many quarters, its rules are meant to be broken.

However, according to the ever-quotable Al Menaster of the L.A. Public Defender’s Appellate Branch:

The news headlines are, US Supreme Court Guts Miranda. NO. The court did NOT overrule or even undermine Miranda. All the court held, read slowly, is, “The question we must decide is whether a violation of the Miranda rules provides a basis for a claim under §1983. We hold that it does not.”  To repeat.  A violation of Miranda does not allow a lawsuit under section 1983 for civil damages. The court does NOT say that evidence obtained in violation of Miranda is admissible in a criminal case. “Miranda rests on a pragmatic judgment about what is needed to stop the violation at trial of the Fifth Amendment right against compelled self-incrimination. That prophylactic purpose is served by the suppression at trial of statements obtained in violation of Miranda.”

Continue to make motions to suppress under Miranda. Nothing changed on that point.

• RORABAUGH, 74 CA5 296, 289 CR3 393 (22) #C090482:

While executing a search warrant at Def’s home, police learned that one of his cars was a short distance away, at a ranch owned by one Christensen. Police went to the ranch and towed the car away to be stored until they could obtain a warrant to search it.

Later, the trial court denied Def’s 1538.5 motion to suppress DNA evidence found in the car. He was found guilty of first degree murder, with a sentence of 25 to life.

The Court of Appeal, per Hoch, J., reversed and remanded.

Def’s motion argued that a “warrantless seizure of the car from private property where it was rightly stored” violated the Fourth Amendment, as explained in Coolidge v. New Hampshire (1971) 403 U.S. 443. He argued that officers “could easily have adapted the warrants” they had already obtained “for the seizure of the car. But instead they chose to go behind the warrant requirement of the Fourth Amendment and conduct their own extra-judicial procedure without the signature of a neutral and detached magistrate.”

The People argued that the seizure of the car was well within the automobile exception as developed by the Supreme Court after Coolidge, which holds that officers can search a car independent of the detention or arrest of a defendant when there is probable cause to believe the vehicle contains evidence of a crime.

The Court’s held as follows:

If (a) police do not have an otherwise lawful right of access to an unattended car on private property, and (b) it is not impracticable to obtain a warrant, then (c) warrantless seizure of the car accomplished by trespassing on private property (and subsequently searching the car at another location) is a violation of the Fourth Amendment, and does not fall within the automobile exception, even if there is probable cause to search it.

In answer to the People’s arguments:

The People attempt to distinguish Coolidge, arguing “the record shows that it was not practicable for the police to secure a warrant before seizing the vehicle.” The record shows no such thing. We can discern no way in which it would have been impracticable to return to the judge who authorized the search warrant in order to obtain authorization to seize the car sitting on Christensen’s land.

The People’s contention that the car was “readily mobile” also lacks support in the record. The People concede for purposes of the Fourth Amendment issue that defendant had already been arrested at his home, and was in custody before police towed the car, and Christensen did not have a key to the car.

Cases the People rely on in supplemental briefing are distinguishable. Florida v. White (1999) 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed.2d 748 was a case about warrantless seizure of a car, where “the vehicle itself was contraband under” state law. (Id. at p. 565, 119 S.Ct. 1555.) No such principle applies here. Further, the high court emphasized that the warrantless seizure at issue occurred in a “public area,” whereas here, the car was on private property.

Your Humble Editor Has Written a Book

It being a rather light update this time around, may I offer a small commercial?

Some of you remember my dad, Art Bell, a great L.A. lawyer who conceived and operated Bell’s Compendium for 20 years. I was able to work with him for a couple of years before he died, enabling me to carry on his work.

Dad grew up in Hollywood, next door to Joel McCrea and across the street from Jason Robards. He went to Hollywood High, then UCLA (where he played baseball alongside Jackie Robinson). In the 30s, to make some money, he became an extra for the movie industry. He joined the Screen Extras Guild and went out on dozens of calls.

One of them was for a Civil War movie. You may recall Gone With the Wind. Remember the scene at the train station, where Scarlett has to wade through the entire yard filled with wounded and dying soldiers? Then you saw my dad (somewhere!) He later told me the dead soldiers were dummies, so at least he got a meatier role.

When he returned from World War II he grabbed a few more extra roles, one of them being in the enduring classic The Best Years of Our Lives.

Then he settled with his wife and two sons (I was not yet in the picture) in Woodland Hills, went to law school at USC, and began the practice of law. When I picture my dad in those days, I always see him in black and white, wearing a fedora.

That’s whey I’ve always been a fan of movies set in the 1940s and 50s. I’m especially fond of film noir from that era.

I’m also a fan of classic pulp fiction, crime and detective stories that grabbed readers from the start and held them to the end. Turns out Dad was a friend of one of those writers from the Golden Age, W. T. Ballard. Ballard wrote for the fabled Black Mask pulp magazine, alongside people like Dashiell Hammett and Raymond Chandler. A series character Ballard created was Bill Lennox, a “troubleshooter” for a Hollywood studio. I liked those stories, and one day decided to try my hand at one featuring a troubleshooter named William “Wild Bill” Armbrewster. I set the story in 1945 Hollywood, just after the war ended.

It turned into a “novelette”, a popular pulp length that’s, well, more than a short story and less than a novella (which is less than a novel!) Then I wrote another and another…until I had six of them. I gave them to a select group of readers and got back rave reviews.

So I’m publishing them all in a book called TROUBLE IS MY BEAT. Here’s the blurb:

Bill Armbrewster is the troubleshooter for National-Consolidated Pictures. That means getting leading men out of the drunk tank … or a murder rap. It means keeping wolves away from starlets and dancers away from temptation. Once it even means helping Bette Davis out of a jam.

From City Hall to the Sunset Strip—and all points in between—William “Wild Bill” Armbrewster, a Marine who fought in France in the first World War, gets between the studio talent and a raft of swindlers and hooligans, killers and thieves.

Fair warning: Don’t get on his bad side.

The ebook version is available for pre-order on Amazon for the deal price of $2.99 (a print version will come out later). You can place your order now by going HERE.

I thank you for your kind indulgence!

• BLAKES, 72 CA5 904, ___ CR3 ___ (21) #C093856:

Sacramento County Sheriff’s Deputies were assigned to the gang suppression unit. They spotted a gold Chevy Impala with tinted windows. Driving behind the Impala, they ran a records check and determined the Impala was owned and being driven by Def., whose license was suspended.

They initiated a traffic stop based on the window tint violation and driving with a suspended license. Def. drove for about one-tenth of a mile before pulling over into a parking lot and legally parking. Addressing Def. the deputies smelled the odor of marijuana.

They ordered Def. out and pat searched him, finding nothing. They then ordered an impound tow and proceeded to search the car as “incident to a tow.”

They found a burnt marijuana cigarette sticking out of the trash receptacle in the center console, a digital scale with green and white residue on top, and prescription bottles were in the center console. On the floorboard there was a glass jar which contained marijuana with at least one bag tied in a knot. An empty handgun holster was found in the back seat. When shown the holster and asked if there was a gun in the car, Def. said he knew nothing about the holster or any gun. A handgun was found on the rear driver’s side seat. Also in the car was a black backpack containing different identification cards, driver’s licenses, and credit cards.

Def. was arrested and put in handcuffs after the gun was found. The Impala was towed.

Petitioner was charged with felon in possession of a firearm, driving without a valid license, possession of a controlled substance, along with a serious felony and a strike allegation.

Def’s 1538.5 motion was denied. The Court of Appeal, per Blease, Acting P.J., reverses.

Prop 64 legalized the possession of up to 28.5 grams of cannabis by individuals 21 years or older. It does not apply when the totality of the circumstances gives rise to a fair probability that an existing cannabis regulation was violated when the search occurred. In this case, two potential violations were possible: DUI MJ and driving with an open container of MJ.

The evidence adduced at the suppression hearing does not carry the People’s burden of proving probable cause to justify the warrantless search. The prosecution presented no evidence that petitioner was impaired; no sobriety test was administered, there was no evidence petitioner drove erratically before the stop, and neither detective testified to observing any indicia of petitioner being intoxicated. Likewise, there was no evidence either detective observed an open container before petitioner’s car was searched.

The fact that there was a smell of burnt marijuana emanating from the car was insufficient to support either theory of probable cause in this case. Neither detective could determine if the marijuana was freshly burnt, removing any support for an inference that petitioner was smoking the marijuana while driving. As we found in Johnson, “the facts in this case comprised of a parked car missing a registration tag and having an expired registration, the odor of marijuana emanating from the car, the observation of a tied baggie containing ‘a couple grams’ of marijuana in the car’s center console, and defendant’s actions outside the car in resisting the officers. The totality of these circumstances did not amount to a ‘fair probability that contraband or evidence of a crime” would be found in defendant’s car.’ [Citation.]” (People v. Johnson, supra, 50 Cal.App.5th at p. 635.)

The Court also held that the impound search was a pretext:

What is not present is an adequate community caretaking function served by the impound here. There was no evidence petitioner’s car blocked traffic or was at risk of theft or vandalism; the Impala was legally parked in a parking space in a public parking lot. Although the detectives testified it was common (and thus part of the policy) to tow when the driver had a suspended license to prevent more driving under a suspended license, this policy does not provide a community caretaking function for the tow. The detectives did not afford petitioner the opportunity to call someone to drive his car to another location. More importantly, the evidence shows the impound decision was motivated by an investigatory purpose.

Blood Draw of Unconscious DUI Suspect Upheld

• Nault, ___ CA5 ___, ___ CR3 ___ (21) #B306460:

Def. tried to pass an 18-wheeler on a stretch of two-lane highway. He crashed into a Honda Civic, killing the driver. Both cars burst into flames.

When CHP arrived Def. was already in an ambulance, semi-conscious, smelling of alcohol. Medical personnel were giving him oxygen and intravenous fluids. The Off. went to get a breathalyzer from his cruiser. When he returned, medics were moving Def. to a helicopter for emergency evacuation.

Another Off. went to the hospital and found Def. unconscious and about to go into surgery. He asked a nurse to draw blood. Two samples were drawn and came up 0.14 BAC. Def. was convicted of second degree murder and gross vehicular manslaughter while intoxicated. His motion to suppress the blood evidence was denied.

The Court of Appeal, per Wiley, J., affirmed.

McNEELY, 569 US 141 (13) held that a warrantless blood draw is presumed unreasonable unless justified by a recognized exception. One such exception is exigent circumstances, which arise when an emergency makes law enforcement needs so compelling that a warrantless search is objectively reasonable.

Subsequently, in Mitchell, 139 SC 2525 (19), the Court held that when a driver is unconscious, the Fourth Amendment “almost always” permits a warrantless blood draw when police officers do not have a reasonable opportunity for a breath test before hospitalization.

The court here rules that Mitchell applies. Def. cited MEZA, 23 CA5 604 (18), where a warrantless draw at the hospital was improper without a warrant. But “Meza was pre-Mitchell. There was no airlift of an unconscious person.”

Good Faith Reliance on Invalidated Precedent

This case came back to Cal on remand after the U.S. Supreme Court invalidated the warrantless pursuit of a misdemeanant in LANGE, 594 US ___, 141 SC 2011, 210 LE2 486 (21).

This time, the CA upholds the search because the CHP officer could have relied in good faith on Cal precedent that LANGE invalidated.

Here, Officer Weikert may not properly be charged with knowledge that his warrantless entry into defendant’s home violated the Fourth Amendment given that multiple California cases—good law at the time—authorized warrantless entry in cases, such as this one, involving the hot pursuit of a fleeing misdemeanant.

• CUADRA, ___ CA5 ___, ___ CR3 ___ (21) #B310554:

On June 3, 2020, at 2:15 a.m., Deputy Sheriff Xavier Zeas and his partner drove their patrol car into the Destiny Inn parking lot in the City of Commerce and stopped next to a parked car near where Def. was standing.

Because of Black Lives Matter protests, there was a curfew in effect. From inside the patrol car, Deputy Zeas asked Def. if he was aware of the curfew. Def. said No. Deputy Zeas then asked appellant if he was on parole or probation. Def. said he was on probation.

The two officers exited their patrol car and asked Def. to walk over to the hood of the patrol vehicle. Def. raised his hands and stepped backward, away from the patrol car. He asked why the officers were “attempting to detain” him, as he had done nothing wrong.

Because Def. had his hands up, Deputy Zeas saw an unidentified “bulge” in Def’s right front pants pocket. The bulge was “pretty big” and consistent with the shape of a firearm. At this point Def. told them he had a gun.

At that point Deputy Zeas ordered Def. to the ground. He complied and Deputy Zeas performed a pat down search, recovering a loaded .38 caliber revolver from appellant’s right front pants pocket. After entertaining argument, the trial court denied the motion.

In a 2–1 decision, the Court of Appeal, per Stratton, J., reversed. The question was whether there was a sufficient “show of authority” to turn this encounter into an unlawful detention.

Instructions to put one’s hands on the hood of a car has been deemed a show of authority. (U.S. v. Brodie (D.C. Cir. 2014) 742 F.3d 1058, 1061; U.S. v. Brown, supra, 401 F.3d at p. 595.) By his own testimony, Deputy Zeas began the detention process when he “asked” appellant to come toward the hood of the patrol car. Hearing those words, whether as a “request” or an “order,” no reasonable person would feel free to leave.

***

Nevertheless, relying on California v. Hodari D., the People argue there was no detention because appellant did not actually submit to the officers’ show of authority. Instead, he raised his arms and stepped back, conduct which the People contend is noncompliance. We disagree. Generally, people do not put up both hands and step back while still facing the police if they believe they can just walk away. They walk away. Raising one’s hands and stepping back is a universally acknowledged submission to authority.

***

The observation of the bulge in appellant’s pocket occurred as a result of appellant’s submission to authority. As Deputy Zeas put it, “when he raised his hands in the air, that revealed a bulge in his front right pants pocket.”

We conclude that there was neither probable cause to arrest appellant but for the illegal detention, nor was this a consensual encounter after the officers directed appellant to the hood of the car. As for a brief investigatory stop under Terry v. Ohio, there must be an objective manifestation of a reasonable articulable suspicion that cri minal activity is afoot and that appellant was a person engaged in, or about to engage in, criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 230.) Here there was neither. All the officers knew was that appellant was standing next to a car in a motel parking lot at 2:00 a.m. … Under the totality of circumstances, we conclude appellant submitted to a show of authority and his detention was not founded on reasonable suspicion, consent, or probable cause to arrest. The stop does not pass constitutional muster and the revolver seized as a result of the search should have been suppressed.

Does a question tug at your mind? A question such as: Why wasn’t this a valid probation search?

The majority took care of this with one line:

And without knowing whether defendant’s grant of probation included a search condition, the officers could not ultimately stop and search him as they did. (In re Jaime P. (2006) 40 Cal.4th 128, 139.)

In dissent, Grimes, Act. P.J., wrote:

More to the point, however, I do not agree with the majority that the deputies did in fact detain defendant when they got out of the patrol car and asked defendant to come toward the front of the patrol car. Defendant did not do so. Rather, defendant raised his hands in the air and started backing away from the deputies, asking why they were “attempting to detain” him when he had done nothing wrong. When defendant raised his hands, Deputy Zeas noticed a large bulge in defendant’s right front pants pocket. Before Deputy Zeas could respond, defendant “spontaneously” told the deputies he had a gun….In my view, there was an attempted seizure only, and the detention did not occur until defendant subsequently complied with the deputies’ demand to get down on the ground.

• Roberts, ___ CA5 ___, ___ CR3 ___ (21) #C081843:

A thirteen-year-old girl was murdered in a Sacramento County park. Her murder went unsolved until defendant’s DNA was linked to her belt buckle and cigarette butts found at the scene. Defendant’s DNA had been collected after an unrelated felony arrest more than a year after Jessica’s murder. Although that arrest was supported by probable cause, he was not formally charged in that matter. Based primarily on the DNA evidence, a jury found defendant guilty of murder in the first degree. The jury also found true an enhancement allegation that defendant personally used a deadly and dangerous weapon, a knife. Defendant was sentenced to an aggregate term of 26 years to life.

Def’s 1538.5 motion was denied. The Court of Appeal, per Murray, J., affirmed.

The court addressed the issue of whether using a DNA sample taken from a defendant who is validly arrested for a felony on probable cause but never formally charged, violates the defendant’s federal or state constitutional rights against unreasonable search and seizure or his state constitutional right to privacy.

The court held that defendant’s federal right protecting him against unreasonable search and seizure was not violated. Following United State Supreme Court precedent, the court said it was no different than taking fingerprints and photographs of someone arrested on probable cause.

And like fingerprints and photographs, once validly obtained, the later use of that evidence in the investigation of another crime is not constitutionally prohibited.

Independent state grounds are not sufficient under the Truth-in-Evidence provision of Proposition 8.

There is a lengthy treatment of the two leading cases on this issue: King, 569 US 435 (13)and Buza, 4 C5 658 (18), concluding:

We disagree with defendant’s premise that what subsequently happened after booking—that he was neither formally charged nor subject to a probable cause determination by a neutral magistrate—meaningfully alters the Fourth Amendment calculus. The reasoning in King and Buza set forth ante implicitly disposes of defendant’s contentions. Indeed, as noted, the high court in King never suggested the applicability of the governmental interests that attach upon an arrest based on probable cause should be reevaluated or reconsidered depending on later proceedings in the criminal justice process, including a prosecutorial charging declination. No such rule is required for other common identification evidence collected at booking like photographs and fingerprints, and we see no reason why such a rule should be required for DNA profiles generated from junk DNA obtained from a person by buccal swab after a valid arrest as part of the booking process.

A Possible U. S. Supreme Court Case on Cell Phone Searches

We’re a bit low on new California cases this cycle, which gives us time to ponder what will surely be a frequent issue in the years ahead. A petition for certiorari is currently pending before the United States Supreme Court—Ohio v. Deuble.

From the blog of lawyer Michael Delsignore, comes the following facts:

A man by the age of 21 was chatting with a person he met on the lesser-known social media app “Whisper.” The man suspected he was chatting with 15-year-old “Bella Jane.” However, “Bella Jane” was actually a law enforcement officer posing as a teenager online to catch sexual predators.

Respondent initiated the conversation with “Bella Jane” with a bold first message that included a detailed description of his penis. “Bella Jane” responded, and the Respondent messaged back with more crude language and a photo of his penis. That morning, several investigators conducted surveillance, and Respondent sent a message to “Bella Jane” around the time he was supposed to meet her. After more sexting, the Respondent arranged to meet “Bella Jane” later that morning at a park nearby at 10:00 am. He said that he would be driving a green Honda. However, Respondent drove by the park and noticed police vehicles. He then messaged “Bella Jane” and said, “I drove by, and there was a cop, I am not trying to get arrested.”

An hour later, he returned to the park and began playing basketball. The undercover officer continued to message the Respondent through the app. Every time the officer would message the Respondent, the Respondent was observed to use his phone and reply. Based on this observed evidence, the officer radioed another officer to have Respondent arrested.

Once Respondent was detained, the officers collected his phone from the basketball court and sent a “test message.” to confirm that he was the person chatting with the undercover officer. He was taken into a truck for questioning and read his Miranda warnings. He admitted that he had come to the park that day to have sex with a 15-year-old girl. The officers sent a message to Respondent and saw that a notification appeared on the screen. The officers used this information for cause to arrest Respondent. Testimony during the suppression hearing supports the contention that law enforcement officers did not access the phone’s contents but observed a notification on Respondent’s phone screen.

At trial, the Respondent moved to suppress evidence, which the trial court denied. He sought to suppress all evidence at trial, which included his statement and the contents of his cell phone. He asserted that he was arrested without probable cause and that all of the evidence gathered should be excluded under the Fourth Amendment’s right against unreasonable seizure.

The appellate court applied Riley v. California to the case and held that the Respondent had a reasonable expectation of privacy when it came to his phone notifications. However, other circuits have found that there is no such expectation of privacy. Some courts compare notifications to a cell phone ringing; there is no reasonable expectation of privacy when it comes to one’s ringtone. However, notifications are much more detailed and give more information than just a ringtone.

This case presents two questions for the Court:

1) Whether probable cause to detain a person suspected of soliciting sexual activity from a minor (a posed undercover police officer) through social medial, where the person’s identity is corroborated by the actions he takes. The defendant never physically met the “teenage girl” he was sexting online. He agreed to meet girl (the law enforcement officer posing) and was the only person observed at the location using his cell phone as the “girl” sent him messages via social media.

2) Whether a phone is searched even if officers do not access the phone’s content.

Cert. has not yet been granted. Stay tuned.

Key search cases involving cell phones:

CARPENTER, 585 US ___, 138 SC 2206, 201 LE2 507 (18): FBI obtained cell-site information from Def’s cell phone carrier. Used to establish Def at location of robberies. Held, obtaining this information was a search requiring warrant supported by probable cause. 5-4, decision by Roberts, CJ.

RILEY, 573 US ___, 134 SC 2473, 189 LE2 430 (14): Stop for traffic violation and arrest on weapons charge. Offs searched cell phone data and found gang evidence, leading to sentence enhancement. Illegal warrantless search without exigent circumstances. Unanimous. Supersedes contrary Cal. Sup. Ct. decision in Diaz, 51 C4 84, 119 CR3 105, 244 P3 501 (11).

MACABEO, 1 C5 1206, 211 CR3 34, 384 P3 1189 (16): Offs stopped Def on his bicycle for failing to stop at a stop sign. Consented to search of pockets. Cell phone. Search by Off found obscene pics. Invalid under RILEY.

• LANGE, 594 US ___, 141 SC 2011, ___ LE2 ___ (21) #20-18:

Lange drove by a California highway patrol officer while playing loud music and honking his horn. The officer began to follow Lange and soon after turned on his overhead lights to signal that Lange should pull over. Rather than stopping, Lange drove a short distance to his driveway and entered his attached garage. The officer followed Lange into the garage. He questioned Lange and, after observing signs of intoxication, put him through field sobriety tests. A later blood test showed that Lange’s blood-alcohol content was three times the legal limit.

The State charged Lange with DUI. Lange moved to suppress the evidence obtained after the officer entered his garage, arguing that the warrantless entry violated the Fourth Amendment. The Superior Court denied Lange’s motion, and its appellate division affirmed. The California Court of Appeal also affirmed. It concluded that Lange’s failure to pull over when the officer flashed his lights created probable cause to arrest Lange for the misdemeanor of failing to comply with a police signal. And it stated that Lange could not defeat an arrest begun in a public place by retreating into his home. The pursuit of a suspected misdemeanant, the court held, is always permissible under the exigent-circumstances exception to the warrant requirement. The California Supreme Court denied review.

The Supreme Court, per Kagan, J., holds that under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always—that is, categorically—justify a warrantless entry into a home.

It’s a messy decision.

The Court’s Fourth Amendment precedents thus point toward assessing case by case the exigencies arising from misdemeanants’ flight. When the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—the police may act without waiting. Those circumstances include the flight itself. But pursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless home entry.

Hello, what? The flight itself is included in the “totality of circumstances,” but there have to be other considerations; and these have to be weighed on the spot as the suspect is fleeing.

See what you can make of this, from Justice Kagan’s opinion:

When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances, as described just above, include the flight itself. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency.

***

On many occasions, the officer will have good reason to enter — to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so — even though the misdemeanant fled.

Um…okay. In Roberts’ “concurrence” (that reads like a dissent) he calls this approach “hopelessly indeterminate.”

Illegal Detention, But Taint Attenuated by Discovery of Arrest Warrant Before Search

• Kasrawi, 65 CA5 751, ___ CR3 ___ (21) #D077139:

At 4:00 a.m. a San Diego police officer, Pardue, was driving his regular patrol route in Del Mar when he saw Kasrawi cross a residential street and start to enter his Toyota Prius. Because Pardue rarely saw people during his nighttime patrol, knew of two car burglaries in the area in the past week, and did not recognize the Prius, he flipped on his spotlight and pulled up behind and to the side of the Prius, “flooding Kasrawi with a bright light.”

Pardue asked Kasrawi where he was coming from. Kasrawi said he was resting on a drive down from Los Angeles. Pardue didn’t buy it. He had a hunch Kasrawi was “casing vehicles.” He put cuffs on Kasrawi, and subsequently found out Kasrawi had an outstanding arrest warrant.

A subsequent search incident to arrest yielded stolen items from nearby cars in Kasrawi’s pockets and his Prius, from fistfuls of loose change to gift cards and purses. Kasrawi also attempted to discard a bindle of methamphetamine, but an officer who arrived to help Pardue noticed when Kasrawi dropped the small package. Kasrawi was charged with six counts related to these car burglaries, the stolen items, and possession of methamphetamine.

Kasrawi’s motion to suppress was denied. The Court of Appeal, per Dato, J., affirmed.

First, as to the detention, the court found (in a 2-1 split) that the detention was unlawful:

A reasonable person would not feel free to terminate such an encounter with law enforcement. Furthermore, the detention was unlawful because the factors known to Pardue at that point gave rise to no more than a mere hunch that Kasrawi might be involved in criminal activity.

On this point, the dissent by Benke, J., disagrees:

The majority acknowledges the spotlight alone might not have been enough to constitute a detention but asserts the “ ‘manner or mode’ ” of Pardue’s approach removed any ambiguity as to Kasrawi’s ability to leave. I disagree. As an initial matter, Pardue stopping his patrol car behind Kasrawi’s vehicle was not materially different than the actions of the officers in Perez and Tacardon, and, if anything, it was less aggressive.

Nevertheless, the taint of the unlawful detention was attenuated by the discovery of the outstanding warrant. From the majority opinion:

An illegal detention that uncovers evidence is generally subject to the exclusionary rule, which dictates the unlawfully obtained evidence be suppressed as “fruit of the poisonous tree.” (Wong Sun v. United States (1963) 371 U.S. 471, 488; People v. Krohn (2007) 149 Cal.App.4th 1294, 1299.) Kasrawi assumes that if we agree with him about the timing of his detention, then we would agree that his motion to suppress should have been granted in the trial court. But exceptions to the exclusionary rule apply “when the costs of exclusion outweigh its deterrent benefits.” (Strieff, supra, 136 S.Ct. at p. 2059.) One such exception is the intervening discovery of “a valid, pre-existing, and untainted arrest warrant.” (Id. at p. 2061.) When this kind of discovery is made, and there are no countervailing concerns about flagrant police misconduct, “the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression.” (Id. at p. 2059.) That was the case here, because Pardue’s quick discovery of Kasrawi’s outstanding warrant preceded the search incident to his arrest and cured the taint of the unlawful detention.

• CANIGLIA, ___ US ___, ___ SC ___, ___ LE2 ___ (21) #20–157:

With rare unanimity on the 4th Amendment, the Court holds there is no “community caretaking” exception to the warrant requirement when entering a home. There may be in an auto situation [Cady, 413 US 433 (73)], but homes are due higher protection.

During an argument with his wife, Caniglia put a handgun on the dining room table and asked his wife to “shoot [him] and get it over with.” His wife left and spent the night at a hotel. Next morning she was unable to reach her husband by phone, so she called police to request that they check on him. The officers accompanied the wife to the home, and saw Caniglia on the porch. The officers called an ambulance based on the belief that Caniglia posed a risk to himself or others. Caniglia agreed to go to the hospital for a psychiatric evaluation on the condition the officers not confiscate his firearms. But once Caniglia left, the officers went in and seized his weapons. Caniglia sued, claiming that the officers had entered his home and seized him and his firearms without a warrant in violation of the Fourth Amendment. The District Court granted summary judgment to the officers. The First Circuit affirmed.

A unanimous Supreme Court, per Thomas, J., vacated and remanded.

What is reasonable for vehicles is different from what is reasonable for homes. Cady acknowledged as much, and this Court has repeatedly “declined to expand the scope of . . . exceptions to the warrant requirement to permit warrantless entry into the home.”

Roberts, CJ, with Breyer, J., filed a concurring opinion to stress that the exigent circumstance exception to help the injured or potential victims is not changed by this opinion.

Physical Force With Intent to Restrain, Even if Suspect is not Subdued, is a Seizure

• TORRES, 592 US ___, ___ SC ___, ___ LE2 ___ (21) #19–292:

Officers with the New Mexico State Police arrived at an Albuquerque apartment complex to execute an arrest warrant. They approached Roxanne Torres, who was standing near a Toyota FJ Cruiser. The officers attempted to speak with her as she got into the driver’s seat. Believing the officers to be carjackers, Torres hit the gas to escape. The officers fired their service pistols 13 times to stop Torres, striking her twice. Torres managed to escape and drove to a hospital 75 miles away, only to be airlifted back to a hospital in Albuquerque, where the police arrested her the next day.

Torres later sought damages from the officers under 42 U. S. C. §1983. She claimed that the officers used excessive force against her and that the shooting constituted an unreasonable seizure under the Fourth Amendment. Affirming the District Court’s grant of summary judgment to the officers, the Tenth Circuit held that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.”

The United States Supreme Court, per Roberts, CJ, vacated and remanded, holding that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Breyer, Sotomayor, Kagan, and Kavanaugh joined.

The rule we announce today is narrow. In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force. That is to say that the Fourth Amendment does not recognize any “continuing arrest during the period of fugitivity.” Hodari D., 499 U. S., at 625. The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover, and what evidence a criminal defendant may exclude from trial….But brief seizures are seizures all the same.

Applying these principles to the facts viewed in the light most favorable to Torres, the officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away. We therefore conclude that the officers seized Torres for the instant that the bullets struck her.

Exigency Ends When Emergency Ends

• NUNES, __ CA5 ___, ___ CR3 ___ (21) #H046395:

A captain in the Milpitas Fire Department responded to defendant’s house based on a report of a “whole structure fire,” with fire coming from the house. But when he arrived, he saw no fire and no smoke. Neighbors told him they had recently seen a plume of smoke coming from the backyard.

The captain entered the backyard. He found no evidence of active fire, just the “odor of smoke.” He noticed a closed shed. No smoke was coming from it, nor did the smell of smoke seem to originate from there. He opened the shed as part of his fire investigation because he wanted “to make sure everything is clear.”

Inside the shed was a metal cabinet. In his testimony, the captain admitted there was nothing specific about the cabinet that made him think he should look inside. Still, he opened is and saw bottled chemicals he was not familiar with. He called for the hazardous materials team and the police.

The police ultimately obtained a search warrant, based in part on the chemicals found in the cabinet. Def. was charged with possessing explosives and explosive materials. He moved to suppress, the court denied, and this appeal followed.

The Court of Appeal, per Grover, J., reversed. It stressed the heightened protection under the 4th Amendment offers to the home and its recognized extensions, such as a garage or shed.

Key to our decision is the principle that the justification for searching based on exigent circumstances “ends when the emergency passes.” (People v. Duncan (1986) 42 Cal.3d 91, 99.) And here, the emergency which may have existed when fire personnel arrived on scene was no longer apparent when the fire captain opened the cabinet inside the shed.

***

We are not persuaded that opening the cabinet in the shed was necessary to avoid imminent danger to life or serious property damage, given that the urgency of the situation had dissipated. Indeed, the fire captain’s testimony was that nothing “in particular” about the cabinet led him to open it. The exigent circumstances exception therefore does not extend to the cabinet search. Application of the exception requires both a specific articulation of an emergency threatening life or destruction of property, and an explanation of why the action in question was immediately necessary to address the specified emergency. With regard to the cabinet search, we see neither in this record.

Elia, J., dissented.

Entry into the cabinet was justified….The source of the smoke smell was still unknown after entry into the shed and the fire captain’s concerns about the possible presence of explosive material had not been allayed.

• Flores, 60 CA5 978, ___ CR3 ___ (21) #B305359:

At 10:00 p.m. at night, on a cul-de-sac known for illegal drug and gang activity, police see Flores on the street who, when he sees them, goes around and ducks behind a car. Flores looks up, ducks behind the car again, looks up again, and then ducks down again. An officer with a bright flashlight approaches to see what is going on. Flores remains crouched, moving his hands. The officer will later testify that he believed Flores was “pretending to tie his shoe.”

Despite the approaching light and the noise of the police radio, Flores stays ducked down for 20 seconds. The officer testifies he suspected Flores was “there loitering for the use or sales of narcotics.”

The police asked Flores if this was his car. Flores said yes. They asked for identification. Flores directed the police to his wallet, which was inside the car in the driver’s side door. Flores gave his consent for the police to get his wallet. In the wallet police found a bindle of what looked like methamphetamine. Police then searched Flores’s car and found a loaded and unlicensed gun inside a backpack on the front passenger seat

Flores’s suppression motion was denied. The Court of Appeal, in a 2-1 decision, affirmed.

The rule: The Fourth Amendment permits police to initiate a brief investigative stop when they have a particularized and objective basis for suspecting the person of criminal activity. It can’t be a mere hunch. Terry v. Ohio, 392 US 1 (68).

The trial court found Flores’s actions “odd.” The defense asked an obvious question: how do you know if a person is only pretending to tie his shoe? The majority opinion, per Wiley, J., answers:

[Y]ou would have valid suspicions if the person picked an unlikely moment for the task—in the dark, just after seeing police, and just after ducking once already—and if the person took an unusually long time at it. The trial court found Flores kept crouching for a suspiciously long time. Common sense takes context into account.

In dissent, Stratton, J., says:

The majority concludes that ducking, freezing, and not rising fast enough under these circumstances gave those officers reasonable suspicion to conduct a Terry stop. I cannot abide this holding as it threatens to allow police detention based on commonplace conduct subject to interpretation. The majority’s overbroad view of what sort of conduct can be deemed suggestive of wrongdoing ignores applicable law and the realities of twenty-first century America. In the case of a person wary of police interaction, the majority’s approach leaves virtually no room for that person’s conduct to be deemed “normal” and hence not suspicious.

Search of Parked Vehicle With Intoxicated Driver Valid

• Sims, 59 CA5 943, 273 CR3 792 (21) #D077024:

Shortly before 3:00 a.m., two police officers entered a parking lot in downtown San Diego. The officers were patrolling the area because the bars in downtown San Diego closed at 2:00 a.m., exiting patrons were often involved in criminal offenses, and the parking lot was known as a place where people went to drink and loiter after they left the bars. According to one of the officers, there were people congregating and partying in the parking lot, many of whom “scattered” when the officers arrived.

The officers approached a parked vehicle in the parking lot. Defendant was seated in the front passenger seat and appeared to be passed out. The keys to the vehicle were in the ignition. The officers engaged the defendant in conversation and detected the odor of alcohol on his breath. Bloodshot eyes, slurred his speech, etc. Based on these observations, the officers immediately believed the defendant was intoxicated and in violation of section 85.10 of the San Diego Municipal Code.

At the officers’ request, the defendant provided his name. One officer used his cell phone to search the defendant’s name on a criminal records database. The search yielded a record for a person named Tony Sims. The person was on probation and, as a condition of probation, he had executed a Fourth Amendment waiver. The database record included the person’s birthdate, height, and weight, as well as a photograph of the person that was approximately one square inch in size when displayed on the officer’s cell phone.

The officer asked the defendant to exit the vehicle for a vehicle search. However, the defendant was paralyzed from the waist down. Because the defendant was unable to exit the vehicle without assistance, the officer began to search the vehicle while the defendant remained seated in the front passenger seat. During the ensuing search, the officer recovered a loaded semi-automatic handgun from the rear passenger floorboard. The defendant was then handcuffed and removed from the vehicle, after which the officer continued to search the vehicle. The officer seized a second loaded semi-automatic handgun from underneath the front passenger seat and handgun ammunition from the rear driver side floorboard.

But then, oops: The police later determined the defendant was not the person whose record was produced during the criminal records database search and he had not executed a Fourth Amendment waiver.

The defendant moved to suppress. Denied. The Court of Appeal, per McConnell, P. J., affirmed. (Case was remanded for re-sentencing.)

There were two rationales supporting the search.

1. Automobile Exception

Under the automobile exception, police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.

Here, police had probable cause to believe the car could contain evidence of violation of San Diego Municipal Code section 85.10: “No person who is under the influence of intoxicating liquor or narcotic drugs shall be in or about any motor vehicle, while such vehicle is in or upon any street or other public place.”

What evidence? Perhaps an open container. The defendant argued that the officers lacked probable cause to search his vehicle because his state of intoxication, standing alone, did not give rise to a reasonable inference that he consumed alcohol in the vehicle (as opposed to a bar), or that unsealed containers of alcohol would be found in the vehicle.

Assuming without deciding that “something more” than the defendant’s state of intoxication was necessary for the officers to have probable cause for the search, there was “something more” here. The encounter between the officers and the defendant occurred shortly before 3:00 a.m., after nearby bars had closed.

2. Search Incident to Arrest

Under Gant, 556 US 332 (09), police may conduct a warrantless search of the passenger compartment of a vehicle and any containers therein, as an incident to a lawful arrest of a recent occupant of the vehicle, so long as “the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

At the time the officers began to search the vehicle—and discovered the first loaded firearm—the defendant was unsecured and seated in the front passenger seat of the vehicle. The defendant was plainly “within reaching distance of the passenger compartment” while he was unrestrained and seated inside the passenger compartment.

• EDGERRIN J., 57 CA5 752, 271 CR3 610 (20) #D07646:

Defendant and co-defendant, Jamar D., appealed the denial of their motion to suppress. The Court of Appeal, per Dato, J., reverses and remands.

Facts:

After receiving a citizen’s tip that Black males in a Mercedes were “acting shady,” four San Diego Police Department (SDPD) officers drove to the scene in two marked vehicles, activating emergency lights in one. Parking behind the Mercedes, the officers positioned themselves beside each of its four doors and asked the three teenagers inside for their names and identification. A records check later indicated that the driver was on probation subject to a Fourth Amendment waiver. The officers searched the vehicle and recovered a loaded firearm and sneakers linking the minors to a recent robbery.

Issues:

1. Was this a consensual encounter or a detention?
2. If it was a detention, was it justified?
3. If it was not justified, were there “other facts” that could make it so?

The Court held that this encounter was a detention:

Though there is no bright-line rule that activating lights always constitutes a detention, the “Supreme Court has long recognized that activating sirens or flashing lights can amount to a show of authority.” (Brown, 61 Cal.4th at pp. 978, 980.)

Even if a stop did not occur with the officers’ arrival on the scene, it plainly occurred immediately thereafter when four officers stepped out of their vehicles after parking and walked to each door of the sedan for the admitted purpose of preventing its occupants from leaving. The minors were directed to roll down their windows, hand over proof of identification, and provide their names, addresses, and birthdays. When Edgerrin asked if he could call his father, Officer Williams ordered him, “Stay off this phone. I don’t want you to do any of that kind of stuff, okay?”

The court held that the detention was not justified by the “vague citizen’s tip.” The court remanded for further findings to determine whether the officers had enough additional information to constitute reasonable suspicion.

The court added this:

We pause here to clarify that, confronted with a tip that was insufficient to create reasonable suspicion, officers were nonetheless entitled to investigate further. As the juvenile court stated, they had a right to drive to the location after receiving the tip. Once there, they could have made additional observations before approaching or attempted a consensual encounter by asking if the minors were willing to answer a few questions. What they could not do, without more, was immediately detain the minors.

 

Search of Defendant’s Car Upheld Based on Passenger’s Probation Status

• Maxwell, 58 CA5 546, ___ CR3 ___ (20) #C080890:

Two different searches at issue in this one.

Officers received an anonymous tip about the location of one Christy Scarbrough, who at the time had four outstanding arrest warrants and was on searchable probation. They drove to that location and spotted Scarbrough in the passenger seat of a car. After Scarbrough exited the car, one officer arrested her and another spoke briefly to the car’s driver, the Defendant.

Def. several signs of being a drug user. Based on Scarbrough’s searchable probation status, the officer ordered defendant out of his car and searched the car. During the search, the officer found multiple used hypodermic needles under the driver’s seat, a spoon with soot on its underside and brown residue on its inside, a digital scale, multiple cell phones, and several pieces of what the officer believed was black tar heroin. Arrest, search of Def. and car. The officer later searched the motel where Scarbrough and Def. were staying and found multiple used and unused hypodermic needles and 25.9 grams of black tar heroin. Def. was charged with possessing heroin with the intent to sell and with possessing drug paraphernalia.

Several months later Def. was let out of jail on bail with a 4th Amendment waiver search condition. An officer relied on these conditions to search Def’s person, car, and home. At Def’s home, the officer found 44 methadone pills packed in four separate plastic bags. Def. was charged with possessing methadone with the intent to sell.

These charges were consolidated. Def. filed two motions to suppress. Both denied. The Court of Appeal per Blease, J., affirmed.

As to the first search, of the car, and citing Schmitz 55 C4 909 (2012) [officer may search those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity], the court held the same rationale applies to a probationer (here) as to a parolee (Schmitz).

As to the second set of searches, a little wrinkle: shortly after they were effectuated this court, in a previous consideration of the bail terms, held that they were improperly imposed. As the saying goes, timing is everything. These searched are upheld under the Good Faith Exception.

Lawful Possession of MJ in Car is No P-C to Search

• HALL, 57 CA5 946, 271 CR2 793 (20) #A157868:

Def. was pulled over for a vehicle-equipment violation in 2018, a police officer observed in the car “a clear plastic baggie” of what appeared to be marijuana. Based on this observation, two police officers searched Hall’s car and found a gun in a closed backpack, resulting in criminal charges against Hall. The trial court denied Hall’s motion to suppress the evidence found in this search.

The Court of Appeal, per Miller, J., reversed.

Since the passage of Proposition 64 by voters in 2016, however, it has been legal for persons 21 years of age and older to possess and transport small amounts (up to 28.5 grams) of marijuana. (Health & Saf. Code, § 11362.1, subd. (a)(1).) We now join those courts that have held the lawful possession of marijuana in a vehicle does not provide probable cause to search the vehicle. (See People v. Lee (2019) 40 Cal.App.5th 853, 865–867; People v. Shumake (2019) 45 Cal.App.5th Supp. 1, 6; People v. Johnson (2020) 50 Cal.App.5th 620, 634; People v. McGee (2020) 53 Cal.App.5th 796, 801–802.)