Author Archives: James Bell

Officer Flashlights and Proximity is a Detention

• PAUL, ___ CA5 ___, 318 CR3 142 (24) #B320488:

On patrol, Offs noticed a parked Toyota Prius with the lights on. Saw a male driver talking on the phone. Offs approached the Prius from either side, standing close and shining flashlights in. Off engaged in conversation, asked Def. if he was on parole or probation. Parole.

Parole search of the car found a firearm. Def. moved to suppress. Denied. The Court of Appeal, per Moor, J., reverses.

The question was whether the initial contact by police was a detention. In other words, would a reasonable person have felt free to leave?

The court says no.

First, the officers were too close to the car for Def. to drive away without contacting them.

Second, shining the flashlights in from two sides was a show of authority, citing Tacardon, 14 C5 235 (22) and Kasrawi, 65 CA5 751 (21) [Rev. Pen. Cal. Sup. Ct.]

Nor did it matter that the tone of the officer was “non-confrontational.”

If the officer’s tone and words had been aggressive, it would be an additional reason for a reasonable person to believe that he or she was being detained. The converse is not necessarily true, however—the officer’s courteous manner of speaking did not overcome the impression that he intended to detain Paul, which he and his partner conveyed through their actions.

Recordings From City Streetlight Cameras Are Not a Search

  • Cartwright, 99 CA5 983, 317 CR3 472 (23) #D080606:

A gold Yukon parked in front of a flooring store in San Diego. A woman in disguise went in, followed by Def. wearing granny mask and sunglasses. Def. shot and killed the owner and took the money from the register. The accomplice drove away in the Yukon. Def. walked behind a nearby clothing store and removed his mask, an action captured by the store’s security camera. He then used two different white sedans to leave the area.

A detective accessed streetlight camera footage. These cameras are fixed in position and located throughout downtown San Diego and other parts of the city. Footage is stored on each camera’s hard drive for five days; if it is not retrieved within five days, the camera records over the footage.

The video revealed the Yukon, which the DMV tagged as belonging to Def. Police arrested him and, in a subsequent search, found evidence linking him to the robbery-homicide.

Def. moved to suppress the evidence as “fruit of the poisonous tree.” Denied.

The Court of Appeal, per Dato, J., affirms.

The cameras, by their very nature and limitations, do not reveal the transit patterns of people throughout the county. The information they capture is all information voluntarily conveyed to anyone in a public space who cares to look—something any police officer could have done without a warrant.

Cartwright had no objectively reasonable expectation of privacy when he used the public streets and sidewalks downtown in a manner readily observable to passersby. We therefore conclude the police did not conduct a “search” when they accessed footage from City’s streetlight cameras and, accordingly, there was no violation of the Fourth Amendment.

The court distinguished the fixed cameras here with the cell-site records seized in CARPENTER, 585 US ___, 138 SC 2206, 201 LE2 507 (18):

The United States Supreme Court in Carpenter specifically indicated that its holding was intended to be narrow and did not extend to “conventional surveillance techniques and tools, such as security cameras.” (Carpenter, supra, 138 S.Ct. at 2220.) Recordings from cameras, such as the ones that captured Cartwright’s movements in the downtown urban environment in the middle of a weekday, do not rise to the same “unique nature of cell phone location records.” (Carpenter, at p. 2217.) Indeed, “ ‘[a] person traveling . . . on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ”

“Total Suppression” of Evidence May be Appropriate in Certain “Egregious” Cases

  • Helzer, 15 C5 622, , 317 CR3 246, 541 P3 489 (24) #S132256:

The California Supreme Court has never formally adopted the federal doctrine of “total suppression.” This doctrine holds that officers may conduct a search that so exceeds the parameters of the search warrant that suppression of all seized evidence is warranted. See, e.g., FOSTER, 100 F3 846 (10th Cir. 1996).

In this death penalty affirmance, the Court assumes “for argument’s sake that the remedy of total suppression may be appropriate in extreme circumstances of flagrant government misconduct.”

It then goes on to analyze the facts and find nothing egregious here, nor that the police were motivated “by a desire to engage in indiscriminate ‘fishing’ rather than by ‘considerations of practicality.’ ”

In sum, we assume for argument’s sake that the remedy of total suppression may be appropriate in extreme circumstances of flagrant government misconduct. Even so, we conclude defendant has not shown the drastic remedy of suppression of all evidence is warranted here. He has not demonstrated that the executing officers grossly exceeded or flagrantly disregarded the terms of the warrants at issue. Even assuming some of the items seized were not identified in the search warrants, this does not transform an otherwise valid search warrant into an unconstitutional general warrant. The behavior of the officers, the conditions under which the evidence was obtained, and the nature of the evidence seized — whether viewed individually or collectively — does not convince us that this extreme remedy is warranted.

Whimsical Wanderings

Random reflections to lift your spirits and provide a welcome relief from the rantings and ravings that are all too common. Follow thoughts, words, and deeds to fresh perspectives and a few smiles. Please check out my Whimsical Wanderings newsletter:

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Blood Draw From Unconscious Person Not Justified by Exigent Circs or Good Faith

  • ALVAREZ, ___ CA5 ___, ___ CR3 ___ (23) #D080585:

Officers responded to a fatal accident scene. Defendant Alvarez had driven one of the cars and seemed “uninjured but shaken.” Emergency medical arrived and took Alvarez and the sole survivor from the other car to the hospital.

An officer went to the emergency room to request a blood draw from Alvarez, but he was not responsive. The officer ordered one taken anyway. Two-and-a-half hours had elapsed between the accident and blood draw.

Was this permissible under the exigency exception to the warrant requirement?

In Mitchell, 588 US ___,139 SC 2525 (19), the Supreme Court held “when police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.”

Key word, almost.

The court here cites McNEELY, 569 US ___, 133 SC 1552 (13), which held that officers need a blood-draw warrant if one is practical to obtain.

Here, the court found in the record that a telephonic warrant was possible and would not have hindered the investigation. When asked why he did not seek one, the officer had stated, “I just didn’t think of a warrant at that time. . . . And I don’t think I was thinking I should get a warrant or I shouldn’t get a warrant. That didn’t cross my mind at that time, I guess.”

So no exigent circumstances here. The People, however, argued another exception: Good faith, specifically, good faith reliance on the applicability of California’s implied consent law.

Generally, an unconscious or incapacitated person is “deemed not to have withdrawn his or her consent” and a blood or breath test may be administered without giving any admonition about loss of driving privileges.

However, the person must be lawfully arrested for violation of certain sections of the VC, or there must be probable cause to arrest.

Alvarez was not arrested for any offense at the time of the blood draw, and the officer had made no decision to arrest him. Officer Yost had not yet determined who was at fault in the collision. Nor did probable cause exist to support the warrantless blood draw.

Does Forcing Finger to Free Up Phone Frustrate Fourth?

  • Ramirez ___ CA5 ___, ___ CR3 ___ (23) #H049957:

Suspecting Def of lewd and lascivious contact with several minors, Officer obtained a warrant to search Def’s phone for photos and videos. In the warrant application the Off stated: “Your affiant requests permission to contact [defendant] so that we can use his fingerprint to open his cell phone. … It has been my training and experience that newer smart phones are difficult to access absent the passcode or fingerprint even with recent technological advancements. … [¶] Your affiant will attempt to get [defendant’s] cooperation in order to obtain his fingerprint. Should he not cooperate with you[r] magistrate’s order, your affiant request[s] permission to use reasonable force to obtain his fingerprint on his cell phone.”

At the jail, the Off “grabbed” Def’s hand and “guided it toward the phone.” The Def pulled away, but then allowed Off to “guide” his hand toward the phone, while stating, “I’m not giving you permission to do that.” A fingerprint on Def’s left hand unlocked the phone, and Off looked through the contents of the phone, finding lewd images.

Def’s motion to suppress was denied. The Court of Appeal affirmed.

The issue of whether compelling Def to provide his finger is itself a search under the Fourth Amendment was not resolved, because the court held that the S-W authorized the use of “reasonable force” to get the print, even though that was not on the face of the warrant. Def argued it had t be there.

However, defendant cites no authority for the proposition that the magistrate’s authorization to use his fingerprint was required to be contained on the face of the warrant rather than in the probable cause statement that was incorporated into the warrant. Generally, “the scope of the officer’s authority is determined from the face of the warrant and not from the affidavit.” (Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 109.) Here, nothing on the face of the warrant either specifically authorized Gonzalez to unlock the phone with defendant’s fingerprint or prohibited Gonzalez from taking this action. A deficient description of the place to be searched or items to be seized may be cured by reference to the affidavit where “(1) the affidavit accompanies the warrant at the time it is served, and (2) the warrant uses suitable words of reference which incorporate the affidavit by reference. [Citations.]” (People v. MacAvoy (1984) 162 Cal.App.3d 746, 755.)

However, the court gave an “even if”—

Even if the electronic communications search warrants could not be reasonably understood to encompass the compelled use of defendant’s fingerprint, suppression of the evidence discovered on defendant’s phone was not required because the good faith exception to the exclusionary rule applies.

Def also argued that the compelled digit violated his right against self-incrimination, but the court ruled that a finger unlocking a phone is not “testimonial in nature.”

Def argued that using physical force to get the print violated due process.

In performing a search or seizure of a person, law enforcement “may not use unreasonable force to perform a search or seizure of a person.” (People v. Rossetti (2014) 230 Cal.App.4th 1070, 1078.)…[The] physical force [Off] used to effect the unlocking of the phone was minimal and reasonable.

No Standing to Challenge Search of Phone

  • Banks 97 CA5 376, 315 CR3 428 (23) #B312618:

Def was stopped for a traffic violation. Off observed MJ, and also a 14-year-old girl passenger (Doe). A check revealed Def’s license was suspended and there was a misdemeanor traffic warrant for his arrest. A search of the car turned up “revealing clothing,” wigs, condoms. Def was arrested and Doe questioned at the station. Doe consented to a search of her cell phone and signed a consent form. Officer searched the phone and saw information that confirmed his belief that Def was involved in human trafficking or sex for money.

Def moved to suppress the phone evidence. The trial court found no standing. But Def asked the court to find a reasonable expectation of privacy in the data transmitted to a third party because of the “complex, detailed and private nature of smartphone communication.”

The answer is, no. We decline the invitation to depart from this well-settled doctrine.

Detention and Patdown of Driver Justified by Officer Safety

• Esparza, 95 CA51084, 313 CR3 360 (23) #D080703:

After defendant Christopher Esparza was pulled over for a Vehicle Code violation, a detective who specializes in gang enforcement recognized him and two of his passengers as members of a local gang. The detective thought Delfino Osnaya, one of the passengers, was likely to be armed and told the other officers they needed to search him. After their patdown of Osnaya yielded a loaded gun, the officers searched Esparza as well and found another loaded weapon.

The detention lasted seven minutes.

Esparza’s 1538.5 motion was denied. The Court of Appeal, per Dato, J., affirmed.

Esparza argued: (1) the officers lacked reasonable suspicion that he was armed and dangerous when they conducted his patdown, and, in any event, (2) the detention lasted too long because the traffic stop went beyond what was necessary for the officers to issue him a citation for tinted windows.

By the time officers conducted the patdown search of Esparza, they had already gathered a considerable amount of specific information. Esparza had been identified by a veteran gang detective as an established gang member who was driving a car with (at least) two other gang members.   At the moment of the traffic stop, he was driving through contested territory claimed by both his gang and a rival group. Each of the gangs were known for violent activity. A ghost gun with a magazine of ammunition had just been found on one of his passengers.   Given that “consideration of the modes or patterns of operation of certain kinds of lawbreakers” is a permissible point of reference from which a “trained officer [can] draw[ ] inferences and make[ ] deductions” (Cortez, supra, 449 U.S. at p. 418), there was enough here to reasonably infer that Esparza may have been armed and dangerous in that moment. To say otherwise would be tantamount to undermining all of the specialized knowledge about gang operations gathered by investigators who are deeply immersed in tracking such activity and would impermissibly shrink Terry stop analysis to an artificially confined scope.

***

Esparza’s second argument focuses on the length of his detention, asserting it was unduly prolonged because it went beyond the officers’ only necessary tasks: to run his license and then issue him a citation for tinted windows. After conducting a thorough review of how the traffic stop proceeded, we are convinced that at each juncture the officers acted within the bounds of the law. Any delay that resulted from Arreola’s decision to wait for backup was reasonable in light of his justifiable safety concerns. As a result, the brief investigation of Osnaya that took place in the interim did not prolong the detention.

***

Finally, we address Esparza’s reliance on People v. McGaughran (1979) 25 Cal.3d 577, 581 (McGaughran), which is distinguishable on the facts alone. In that case, an officer stopped a car for driving the wrong way on a one-way street, and then detained the car for over a half hour while he checked for warrants, called for backup, and rechecked the warrants. He spent a significant portion of that time sitting in his car alone without displaying the kind of concern for officer safety present in this case. In contrast, the total time between the initial detention of Esparza’s car and his patdown search was about seven minutes.

Consent to Search Car Was Coerced By Threat to Tow

  • BOITEZ ___ CA5 ___, ___ CR3 ___ (23) #C098102:

Officer pulled defendant over for failing to come to a complete stop at an intersection. Off. asked Def. for license, registration, and insurance. Def. had none. It was Def’s mother’s car.

Off. asked for consent to search car. Def. looked nervous. Off. said, “Look, I’m not giving you a ticket for running the stop sign, I’m not giving you a ticket for the insurance stuff, and I’m not towing your car. That seems like a pretty good deal. If I tow your car, brother, you ain’t getting it back till Monday. That’s the tow plus two days of storage, maybe three . . . .” Def. asked whether his sister, who had a valid license, could take the car. Off. replied, “That’s what I’m trying to work out with you, man. You be cool with me brother; I’ll be cool with you….I’m trying to cut you a break, dude, okay? So if you’re good with that, I’ll cut you a break?” Defendant replied, “Yup,” while nodding his head. Off. subjectively believed he had authority to tow, even though he did not.

Search turned up loaded gun under passenger seat. Defendant was charged with being a felon in possession of a firearm, being a felon in possession of ammunition, unlawfully carrying a loaded firearm, carrying a loaded firearm in a vehicle, and driving with a suspended license. Defendant filed a motion to suppress. Denied.

The Court of Appeal, per Robie, Acting PJ, reversed. People have the burden to show by a preponderance that a defendant’s consent is voluntary.

We hold that the false promise of leniency not to tow the car was a material and inextricable part of the agreement inducing defendant’s consent to the search, and thus, under the totality of the circumstances, defendant’s consent was not voluntarily given. As part of our analysis, we adopt the reasoning of the First Circuit Court of Appeals that the question of voluntary consent cannot be based on the subjective good faith of a police officer in making the false statement that induced the defendant’s consent to search.

Fleeing Officer’s Request Was Resisting/Delaying Arrest

  • In re T.F.-G., 94 CA5 893, CR3 685 (23) #H050112:

San Jose officers in unmarked car stopped near a group of five by a parked red Mustang. They smelled burning MJ and got out to question the people. They pat searched two, then approached Def., a juvenile. The convo went like this:

Off: “Can you come over here for a minute?”

Def.: “For what?”

Off: “Huh?”

Def.: “For what?”

Off: “Just come over here.”

Def.: “For what?”

Off: “Because I asked you to. Don’t make this—”

At which point, Def. took off running. He was tackled, punched, and arrested for resisting or delaying a peace officer (Pen. Code, § 148, subd. (a)). A loaded gun was found in his gym shorts pocket.

Suppression denial affirmed.

T.F.-G. argued that the police officers had not detained or attempted to detain him before he fled, and therefore he was not lawfully arrested pursuant to section 148, and the search of his basketball shorts was not incident to a valid arrest.

The court held that “a reasonable person in T.F.-G.’s position would have understood that the request to go to the officer was mandatory. By the time T.F.-G. fled, the officers were at least attempting to detain him. The officers therefore had probable cause to believe that T.F.-G. violated section 148.”

P-C to Search Passenger Area of Car Did Not Extend to Trunk

  • LEAL, 93 CA5 1143, 311 CR3 540 (23) #C096463

Officers were surveilling a funeral because they expected a criminal street gang connected to prior shootings to be in attendance. An officer observed a juvenile walking and holding his pants up; he later observed a black handgun in his waistband. The juvenile got in Def’s car and lay down, then got out, appearing not to have the weapon. Off thought the juvenile had slipped the gun under the seat.

Defendant drove his car to a barbershop. Another officer detained him and said he was going to search his car. When he didn’t find a gun under the passenger seat, he decided to search the trunk. There he found a loaded Glock handgun.

Def moved to suppress. Denied. The Court of Appeal, per Robie, J., reverses.

A survey of cases applying the automobile exception reveals courts generally find warrantless searches of trunks and other enclosed compartments in a vehicle justified in three categories of circumstances: (1) officers have probable cause to believe contraband or evidence of a crime will be found specifically in the trunk or other enclosed compartment; (2) a search of the passenger compartment reveals contraband or other evidence generating further probable cause to search the trunk or other enclosed compartment; or (3) probable cause exists as to the entire car (i.e., that the contraband or evidence of a crime will be found somewhere in the car). The search of the trunk here does not fit within any of these categories.

Holding:

We hold that when an officer has probable cause to believe contraband or evidence of a crime will be found specifically in the passenger compartment of a vehicle (as compared to having probable cause to believe it will be found somewhere in the vehicle), and no other subsequent discovery or information provides further probable cause to believe the evidence will be found in the trunk, an officer’s search of the trunk exceeds the permissible scope of a warrantless search under the automobile exception.

Descriptions of Child Porn Were Adequate to Establish P-C

  • Wadleigh, 93 CA5 531, 310 CR3 948 (23) #A165017

Two search warrants issued re: child porn. In the affidavit, no images were attached, only four descriptions of the images. Def. moved to suppress, arguing that the warrants authorizing the two searches were invalid because their descriptions of four images in his electronic accounts lacked sufficient factual detail from which the magistrate could determine that (1) the subjects were minors and (2) the images depicted sexual conduct within the meaning of section 311.4, subdivision (d)(1).

1538.5 denial affirmed.

The court agreed with Wadleigh that the preferred course of action in such matters would be to attach actual images. However, there was enough info in the descriptions to establish P-C:

[W]e agree with Wadleigh that “a neutral and detached magistrate” (Illinois v. Gates, supra, 462 U.S. at p. 240), should in general view suspected images of child pornography and make the ultimate determination that the depicted individuals are minors. On the facts here, however, we conclude that the magistrate had a substantial basis to conclude the images depicted minors.

There was a Franks issue regarding the description of the first of the images. Under Franks v. Delaware 438 US 154 (78), the Supreme Court held that, where a “defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included . . . in [a] warrant affidavit,” and then proves the statement was reckless or intentional, “the affidavit’s false material [is] set to one side.” . . . If “the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded . . . .”

The court here concluded that, setting the first image to one side, the other descriptions established probable cause for the searches.

Auto Stop for Registration Was Unduly Prolonged

  • SUGGS, 93 CA5 1369, 311 CR3 739 (23) #C096555

Def’s car was stopped for having paper plates, and Off not seeing paperwork displayed in the window as required by law. On approach, the Off did see the paperwork attached to the darkly tinted window. He proceeded to question Def and passenger, ask for ID, and if there was anything “crazy” in the car. He also asked about probation status.

Off then asked for consent to search the car. Def declined. Off went back to his patrol vehicle then returned and informed Def and his passenger that they both had suspended licenses, the passenger was on probation for “possession of firearms stuff and a couple other things,” and he was going to conduct a probation search.

The search turned up a concealed firearm and ammunition in a satchel on the floor behind Def’s seat that was within the passenger’s reach. Based on that discovery, Off searched the entire vehicle and found a scale and a cigarette box holding 30 pills of a controlled substance in a compartment near the steering wheel.

Def’s motion to suppress was denied. The Court of Appeal, per Boulware Eurie, J., reverses.

We agree the detention became unlawful when (1) the purpose of the stop completely dissipated (when the officer saw the documents in the window and thus realized that defendant had not committed the Vehicle Code violation that was the purpose of the stop), and (2) the officer then made inquiries aimed at finding evidence of ordinary criminal wrongdoing.

GPS Tracker Placed on Car Was Permissible as Parole Search

  • Session, 93 CA5 723, 311 CR3 363 (23) #G060536

String of burglaries in Orange County. Offs stopped white BMW with Def driving. Off placed a GPS tracking device on the car before allowing it to leave. Car was later stopped after a chase. Phones and other items linked to burglaries were recovered.

Def moved to suppress, arguing that placing the GPS tracker was an impermissible warrantless search because the Off’s knowledge of his parole statues was “vague or uncorroborated.” Denied. Affirmed by the Court of Appeal, per Moore, J.

[W]hen a defendant is on parole, the source of the officer’s knowledge is not legally meaningful. Defendant, in support of the contention that the officer’s knowledge must come from an official source, relies primarily on a case involving a probationer, not a parolee. (People v. Romeo (2015) 240 Cal.App.4th 93)

Dog Sniff Search After Traffic Stop Was Unlawfully Prolonged

  • GYORGY, ___ CA5 ___, ___ CR3 ___ (23) #G061567:

Anaheim police officer McGlade was cruising with dope sniffing dog, Titan. An undercover cop contacted him to be on the lookout for a black pickup that had acted “suspiciously” at a motel known for drug activity.

McGlade spotted the truck and followed. When the truck made a quick lane change, causing another car to brake, McGlade pulled the truck over for a VC violation. Gyorgy was driving.

McGlade asked several questions, eliciting that Gyorgy was a registered sex offender. He then ordered Gyorgy out and told him to sit on the curb as they waited for backup. Another officer arrived, then McGlade patted Gyorgy down. Nothing found.

Now seven and a half minutes into the stop, McGlade told Gyorgy he was going to have Titan sniff the car. Gyorgy protested. Titan began sniffing.

After nearly twelve minutes, Titan alerted to the bottom seam on the driver’s door. The officers searched the interior of the truck and found methamphetamine and a glass pipe with white residue indicative of having been used to smoke methamphetamine. Inside a backpack that was inside a cardboard box, they found an unloaded handgun, an empty magazine, and six live rounds of ammunition.

Gyorgy was charged with unlawful possession of drugs, paraphernalia, a firearm, and ammunition. His 1538.5 motion was denied.

The Court of Appeal, 2-1, reversed and remanded.

In RODRIGUEZ, 575 US 348 (15), the U.S. Supreme Court held that the “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…” and may last no longer than to effectuate that purpose.

Here, the court holds that “[e]xamining the totality of the circumstances, we conclude the police were not reasonably diligent in completing the traffic stop’s mission.”

Moore, Acting PJ, filed a dissent.

P-C for Search Warrant Seeking DNA Supported by “Investigative Genealogy”

  • Lepere, 91 CA5 727, 308 CR3 558 (23) #G061393:

In 2020, a cold case file was assigned to Anaheim Police Detective Julissa Trapp. The case was a 1980 rape-murder of a 79-year-old woman. A rape kit was booked into evidence.

In 2002, a forensic scientist was able to extract male DNA from the rape kit. There was no match in the databases.

Detective Trapp sought help from the FBI, which uploaded the unknown DNA profile to a company that was able to generate a single nucleotide polymorphism profile. This data was uploaded to an genealogy website, which the FBI used as an “investigative lead” identifying Def., now living in New Mexico, as “a person of interest.”

An officer in New Mexico completed an affidavit in support of a search warrant of Def’s home. Trapp and other officers executed the search in the early morning hours, seizing beer cans and other items from Def’s outside trash can. A couple of weeks later, Trapp received a crime lab report linking DNA collected from one of the beer cans to the DNA profile obtained from the 1980 Anaheim murder victim.

Def. was arrested and put on trial. His 1538.5 motion to suppress the DNA evidence was denied. The Court of Appeal, per Moore, Acting P.J., affirmed.

Here, the genealogical investigation by the Orange County Crime Lab and the FBI established a possible DNA connection between Lepere and the 1980 murder. Further, there was corroborating evidence that Lepere may have been near the victim’s apartment in Anaheim, California, at about the time of the 1980 murder. In short, we find there was “a fair probability . . . that a search” of Lepere’s outside trash can “would uncover” circumstantial DNA evidence linking Lepere to the commission of the 1980 Anaheim murder.   (See Kraft, supra, 23 Cal.4th at p. 1040.) Thus, we hold that the New Mexico magistrate had a reasonable basis for issuing the search warrant, and the trial court properly denied Lepere’s pretrial motion to suppress the DNA evidence.

The court went on to note that even if the S-W affidavit were not sufficiently detailed, the Good Faith Exception would preclude suppression. 

Geofence Warrant Was Not Overbroad

  • Price, ___ CA5 ___, ___ CR3 ___ (23) #E078954:

Last Poop Sheet we reported on Meza, 90 CA5 520 (23), involving a geofence warrant, used to access device location data gathered by large tech companies, like Google. While this data is typically “anonymized,” it can be “used in conjunction with other investigative techniques to tie devices to specific users—and identify persons of interest in a criminal investigation.” [Quoting Meza]

In Meza, the court found the warrant lacking in particularity and was therefore overbroad. But the search was saved by way of the Good Faith Exception.

Here,          Riverside County Sheriff’s Investigator Ryan Deanne was the lead investigator in the shooting death of one Jovany R. He was also the affiant for the geofence warrant.

Deanne testified about the investigation, the geofence warrant, and three other warrants seeking Price’s Google e-mail (Gmail) account data and cell phone records, issued after Price was identified as a suspect in the shooting based on location data and identifying information obtained from Google pursuant to the geofence warrant. Deanne also testified about his observations at the scene of the shooting, and his interviews with other investigating officers and witnesses, including Jovany R.’s brother, Samuel R., who was with Jovany R. at the time of the shooting and witnessed the shooting.

***

The geofence warrant sought “all identifying information” according to the Google “production protocol” for Google accounts reporting “location history data generated from devices that reported a location” within the geofence. As Deanne testified, the warrant limited the geofence to the front yard of Jovany R.’s home, where the shooting occurred, and the street in front of the home (Homestead) for the length of two houses in each direction, where Samuel R. saw the two suspects flee in separate directions after the shooting. The street portion of the geofence on Homestead abutted the yards of 11 homes, including Jovany R.’s front yard. The warrant requested location data in the geofence between 10:00 p.m. and 10:22 p.m. on October 29, 2019, a 22-minute period encompassing the time of the shooting, according to 911 calls and the times officers responded to the scene of the shooting. The warrant included an aerial photograph of the geofence marked by latitude and longitude coordinates, and areas immediately around the geofence.

***

Here, the geofence warrant was a model of particularity in geographic scope and time period.

Additionally, as in Meza, the court found the Good Faith Exception would also apply.

Geofence Search Warrants

  • Meza, 90 CA5 520, 307 CR 235 (23) #B318310:

What the heck is a “geofence”? Well, it’s a virtual fence around a physical location. Geofencing is a type of location-based targeting. For example, a user can set it up so when he and his enter a defined geographical boundary, the user gets an alert. A student might walk near a computer store, and then get a text message that says, “Today only! Buy a laptop and get an e-reader free!”

If that’s your idea of a good time, have at it, but, as Samuel Goldwyn used to say, include me out.

Anyway, law enforcement can request a “geofence warrant” to access device location data gathered by large tech companies, like Google. While this data is typically anonymized (there’s another word for you), it can be “used in conjunction with other investigative techniques to tie devices to specific users—and identify persons of interest in a criminal investigation.” [Quoting Meza]

In this case, Daniel Meza and Walter Meneses were identified as suspects in the murder of Adbadalla Thabet after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as Thabet on the day of his murder. After their motions to quash and suppress evidence were denied, Meza pleaded guilty to first degree murder; and Meneses pleaded no contest to second degree murder.

On appeal, Def’s contended the trial court erred in denying their motion to suppress, arguing the geofence warrant violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and did not comply with the California Electronic Communications Privacy Act (CalECPA) of 2016 (Pen. Code, § 1546 et seq.) The court holds that the geofence warrant satisfied the requirements of CalECPA, but lacked the particularity required by the Fourth Amendment and was impermissibly overbroad. However, suppression denial is affirmed under the Good Faith Exception.

Given the dearth of authority directly on point and the novelty of the particular surveillance technique at issue, the officers were not objectively unreasonable in believing the warrant was valid, even if the issue, upon close legal examination, is not a particularly close one.

California Supreme Court

When is a Prosecutor Entitled to a 1538.5 Continuance?

Continuances in criminal cases are covered by PC 1050:

“Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause.” (§ 1050, subd. (e).) Convenience of witnesses is, however, a factor for the court to consider both in deciding whether good cause has been shown and in selecting the new date. (§ 1050, subd. (g)(1).) If the court concludes that a continuance is necessary, it must state on the record the facts justifying that finding. (§ 1050, subd. (f).) Any permitted continuance must be limited to “only . . . that period of time shown to be necessary by the evidence considered at the hearing on the motion.” (§ 1050, subd. (i).)

Section 1050 provides for two different good cause showings. If the moving party has not complied with the procedures of subdivision (b), it must show that there is good cause to excuse that failure. If such a showing is not made the court may impose sanctions. As to the merits of a continuance motion, subdivision (e) requires a good cause showing that a continuance is necessary.

Trial courts enjoy broad discretion to deny continuances unsupported by a showing of good cause. However, established case law holds that it is an abuse of discretion to deny a trial continuance, solely because good cause is lacking, when doing so will result in dismissal of the charges and the continuance can be granted without violating the defendant’s speedy trial rights. (See People v. Ferguson (1990) 218 Cal.App.3d 1173.

Re: a 1538.5 motion, if the challenged evidence is so critical that its suppression would require dismissal of the case, the court must generally grant a continuance unless dismissal would be in furtherance of justice. The burden is on the prosecution to show an inability to go forward without the evidence in dispute. The court, however, must ultimately determine whether dismissal of the case is reasonably probable absent a continuance.

It is an abuse of discretion for a court to deny a continuance within the speedy trial period, absent countervailing factors warranting dismissal.

In Brown, 4 C5 530, 306 CR3 25, 525 P3 1036 (23) #S271877, the California Supreme Court reverses the Court of Appeal, and holds that it was an abuse of discretion to deny a continuance. And:

In determining whether the denial of a continuance will make it reasonably foreseeable that a case will be dismissed, the court must consider the totality of the extant circumstances. One of the factors to be considered is the People’s representation that they will be unable to proceed without the challenged evidence. But the court must independently examine that representation. In the end it is the court’s determination, not the People’s representation, that is dispositive. The reasonable foreseeability standard comes into play when the case cannot be tried absent the evidence, not when the case will simply be more difficult to prove.

Additionally:

This is not to say that the court’s hands are tied when the prosecution seeks a continuance without satisfying section 1050’s requirements. It may impose fines, refer the prosecutor for discipline, and impose any other sanctions at its disposal short of dismissal for procedural noncompliance. (§ 1050.5, subd. (b); see § 1050, subd. (b).) “And, of course, the trial court may exercise its discretion in selecting the length of a continuance; it need not necessarily accede to the prosecutor’s preferred date.” (Ferrer, supra, 184 Cal.App.4th at p. 886.)

Discovery of Parole Search Condition After Unlawful Detention Did Not Remove Taint

  • McWILLIAMS, __ C5 ___, ___ CR3 ___, ___ P3 ___ (22) #S268320:

Responding to a report of suspicious activity in the area, a police officer unlawfully detained a bystander in a parked car, who had no apparent connection to the report. The officer ran a records search and learned that the bystander, McWilliams, was on parole and subject to warrantless, suspicionless parole searches. The officer proceeded to search McWilliams and his vehicle, where the officer found an unloaded gun, ammunition, drugs, and drug paraphernalia.

As a general rule, evidence seized as a result of an unlawful search or seizure is inadmissible against the defendant in a subsequent prosecution. But the law permits use of the evidence when the causal connection “between the lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’” (Wong Sun v. United States (1963) 371 U.S. 471, 487.)

The Court of Appeal held that the officer’s discovery of McWilliams’s parole search condition sufficiently attenuated the connection between the unlawful detention and the contraband found in McWilliams’s vehicle.

The California Supreme Court, per Kruger, J., reverses.

In conducting an attenuation inquiry, the court relies on the three factors set out in Brown v. Illinois (1975) 422 U.S. 590, 603–604:

(1) the “temporal proximity” between the unlawful conduct and the discovery of evidence;

(2) the “presence of intervening circumstances”;

(3) the “purpose and flagrancy of the official misconduct.”

Once the defendant establishes a Fourth Amendment violation, the prosecution bears the burden of establishing admissibility under this exception to the exclusionary rule.

The court spends a good portion of the opinion distinguishing this case from the U.S. Supreme Court’s decision in Strieff, 579 U.S. 232 (16), wherein it was held that discovery of an outstanding arrest warrant after an illegal detention constituted adequate “attenuation.”

The court holds:

No substantial time passed between Officer Croucher’s illegal detention of McWilliams and his seizure of the evidence in this case. Officer Croucher’s subsequent discovery of McWilliams’s parole search condition, and his discretionary decision to conduct the parole search, did little to attenuate the connection between the unlawful stop and the evidence. And Officer Croucher’s decision to conduct the stop, without any evident basis to believe McWilliams was connected to the activity Officer Croucher set out to investigate, indicates a purposefulness that further justifies the exclusion of the evidence.

Note: The following case was cited by the People:

Durant, 205 CA4 57, 140 CR3 103 (12): Illegal traffic stop. Off. then recognized Def. as being on probation. Patdown found firearm. Supp. Den. Aff. Probation search condition attenuated taint of illegal stop.

Footnote 5 of the McWILLIAMS opinion reads:

Although People v. Durant, supra, 205 Cal.App.4th 57, found attenuation on a different set of facts, we disapprove the opinion to the extent its reasoning is inconsistent with this opinion.

Bottom of page 153, top of 154 of the print version of Bell’s should now have this revised section:

And valid search condition may “remove the taint” of an illegal auto stop: 

Strieff, 579 US ___, 136 SC 2056, 195 LE2 400 (16) #14–1373: Off. stopped Def. on suspicion of drug activity, demanded ID. Ran check. Outstanding warrant. Arrest. Meth and drug paraphernalia. Held, stop was unlawful, but valid warrant “attenuated” the connection. Evidence admissible. DISS: Sotomayor.

But cf. McWILLIAMS, __ C5 ___, ___ CR3 ___, ___ P3 ___ (22) #S268320: Illegal detention of passenger in parked car. Record check revealed probation. Off. “discretionary decision” to search was not sufficient attenuation. To that extent, disapproves of Durant, below.

*Durant, 205 CA4 57, 140 CR3 103 (12): Illegal traffic stop. Off. then recognized Def. as being on probation. Patdown found firearm. Supp. Den. Aff. Probation search condition attenuated taint of illegal stop. 
*[Disapproved by McWILLIAMS]

Police Spotlight on Legally Parked Car, Without More, is Not a Detention

• Tacardon, __ C5 ___, ___ CR3 ___, ___ P3 ___ (22) #S264219:

Deputy sheriff on patrol drove past a BMW legally parked in front of a residence. Smoke emanated from slightly open windows. Deputy made eye contact with the occupants as he drove past. He made a U-turn, parked 15 to 20 feet behind the Beemer, and turned on his spotlight—not his emergency lights.

He then approached the BMW at a walking pace. He did not draw a weapon. A woman sitting in the backseat jumped out of the BMW, said she lived there. Deputy directed the woman to stand near the sidewalk behind the BMW where he could see her.

He smelled MJ from the car, used his flashlight to look at the interior. He saw one large and two smaller clear plastic bags on the rear passenger floorboard containing “a green, leafy substance.”

Tacardon was in the driver’s seat. The deputy asked Tacardon if he was on probation or parole. Tacardon said he was on probation. Search of the car nabbed three bags of MJ and a vial with 76 hydrocodone pills.

Tacardon was charged with possession for sale of hydrocodone and marijuana. His 1538.5 motion was granted, based on the detention of the woman and, ipso facto, Tacardon. The Court of Appeal reversed. In analyzing the deputy’s initial approach, the Court of Appeal expressly disagreed with Kidd, 36 CA5 12 (2019), which found an unlawful detention on similar facts.

The California Supreme Court, per Corrigan, J., granted review to resolve “this conflict in the Courts of Appeal.”

In Kidd, the court observed: “motorists are trained to yield immediately when a law enforcement vehicle pulls in behind them and turns on its lights. Regardless of the color of the lights the officer turned on, a reasonable person in Kidd’s circumstances ‘would expect that if he drove off, the officer would respond by following with red light on and siren sounding . . . .’ ” (quoting People v. Bailey (1985) 176 Cal.App.3d 402)

The Supreme Court majority disagrees, opining that “the use of a spotlight generally conveys a different meaning to a reasonable person than the use of a patrol car’s emergency lights.”

In other words, a reasonable person would feel free to drive off…and that the cops would not follow. Adopting the “totality of the circumstances” test for such situations, there needs to be something “more” than a spotlight on the car.

[W] decline to state a bright-line rule. A court must consider the use of a spotlight together with all of the other circumstances. It is certainly possible that the facts of a particular case may show a spotlight was used in an authoritative manner. These may include flashing lights at the driver to pull the car over or attempting to blind the driver, which would be relevant considerations under the totality of the circumstances….But use of a spotlight, standing alone, does not necessarily effect a detention.

Justice Liu filed a dissent.

I imagine this conclusion comes as news to anyone who has ever had their car illuminated by a police spotlight. The court apparently envisions that a reasonable person in Tacardon’s circumstances would think, “Oh, the officer who just eyeballed me, made a U-turn, pulled up behind me in his patrol car, pointed a bright spotlight at my car, got out of his car, and is now walking toward me isn’t trying to stop me. He just turned on his spotlight to see what’s going on. Good thing he didn’t turn on his emergency lights . . . looks like I’m free to leave.” This strains credulity.

 

Parole Search of Auto Did Not Extend to Locked Glove Box

  • CLAYPOOL, 85 CA5 1092, 301 CR3 858 (22) #C096620:

Brandon Claypool was driving a Honda Accord with two passengers: Malcolm Clay in the front passenger seat, and parolee Carlos Olivia in the rear seat on the passenger’s side. Police followed until Claypool stopped on residential street.

Olivia informed police he was on parole. Offs. ordered all occupants out and did a parole search of the passenger area, then used Claypool’s key to unlock the glove box. They found a gun and ammo. The encounter was captured on police bodycam.

Claypool was charged with possession of a firearm by a felon, with enhancement for a prior strike. His motion to suppress was denied. He brought a timely petition for writ of mandate and a motion to dismiss. The Court of Appeal, per Robie, Acting P.J., sends this back to the trial court with directions to grant the motion.

As articulated in Schmitz, 55 C4 908 (12), a permissible search based on a passenger’s parole status is limited to “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.”

Here, the court held that “it does not appear objectively reasonable to believe the back seat passenger, Olivia, might have secreted a gun in the glove box after he saw police.”

 

Minors Smoking MJ in Car Gave P-C to Search Under Auto Exception

  • Castro, 86 CA5 314, 302 CR3 185 (22) #B318174:

Officers saw Castro and another male sitting in a parked car with expired registration, with windows rolled down. There was a strong odor of burning MJ coming from the car.

Officer exited patrol car and made contact with Castro, in the driver’s seat. He recognized the front passenger seat and another male lying in the backseat (who appeared to be hiding) from prior encounters with them, and knew they were minors. He asked Castro if they had been smoking, and Castro said yes. Officer ordered them all out, cuffed them, and searched the car.

He found a nine-millimeter ammunition in the closed center console. He opened the trunk and found an open duffle bag with a loaded nine-millimeter handgun, with no serial number on it.

Castro was charged with carrying a loaded, unregistered handgun in a vehicle. He moved to suppress, contending the search did not fall under the Auto Exception to the warrant requirement. Motion denied.

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

Based on the “strong odor” of “burnt marijuana” emanating from Castro’s car, Castro’s admission he had smoked marijuana, and the fact all occupants of the car were under 21 years of age, the officers had probable cause to believe they would find contraband or evidence of a crime (e.g., marijuana possessed by someone under 21) in the car. We are unpersuaded by Castro’s argument that probable cause did not exist because he told Officer Zendejas he had smoked marijuana two hours before. Officer Zendejas’s belief “that there was still marijuana in the car based on the current smell of marijuana coming from inside the car” was reasonable under the circumstances of this case. Accordingly, we conclude the officers had probable cause to search the car under the automobile exception, and the trial court did not err in declining to suppress the evidence from the vehicle search.

Castro also asserted that “In light of the passage of Proposition 64, police may no longer search an automobile simply because they smell marijuana inside a vehicle stopped for an expired registration.” But because all of the occupants were under 21, it was still unlawful for them to possess any amount of MJ for recreational use.

Probation Search Condition Restricting Internet Use is Overbroad

• Salvador, 83 CA5 57, 299 CR3 266 (22) #H048162:

Salvador pleaded no contest to felony false imprisonment and misdemeanor sexual battery. The trial court granted a three-year term of probation and imposed, among others, conditions requiring Salvador to consent to searches of his electronic devices, and restricting his use of social media and the Internet.

Salvador challenged the probation conditions allowing for searches of his electronic devices and restricting his use of social media and the Internet. He argued the conditions were invalid under People v. Lent (1975) 15 Cal.3d 481, and are overbroad in violation of his rights under the First and Fourth Amendments.

The Court of Appeal, per Greenwood, PJ, held that all the conditions were valid except that restricting Internet use.

A condition of probation will not be held invalid unless it: (1) has no relationship to the crime of which the offender was convicted; (2) relates to conduct which is not in itself criminal; and (3) requires or forbids conduct which is not reasonably related to future criminality. People v. Lent, (1975) 15 Cal.3d 481.

All three prongs of the Lent test must be found before a reviewing court will invalidate the condition. The third prong, relating to future criminality, “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” In re Ricardo P. (2019) 7 Cal.5th 1113. This prong “requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.)

The Attorney General argued that all the conditions were valid under People v. Pirali (2013) 217 Cal.App.4th 1341. But with respect to Internet access, the court stated:

Since [Pirali], the Internet has become even more central and commonplace in the lives of ordinary people; it is now practically unavoidable in daily life. Many more people today use the Internet to work from home, follow the news, or conduct business and commercial transactions such as banking and paying bills. No valid purpose is served by preventing Salvador from engaging in the kinds of Internet access that have become common and ubiquitous—e.g., performing work-related tasks, accessing or commenting on news sites, or conducting commercial or business transactions in ways that require engaging in protected speech. We conclude the limitation we relied on in Pirali—that the probationer could still use the Internet by obtaining prior approval from his probation officer—is not adequate here. Access to some part of the Internet is so necessary and frequent as a part of daily life that it may become unduly burdensome to obtain a probation officer’s approval for every use of it.

More on “Totality of Circumstances” for a Patdown

Back in may we summarized PANTOJA, 77 CA5 483, 299 CR3 85 (22). Recall that in a “high crime area” the officer stopped a silver Dodge for non-working brake and license plate lights. He recognized defendant and knew he “had a history of violence and firearm possession, and he was at the time an investigative lead in a homicide.” He saw no signs defendant was intoxicated. He asked if there was “weed” in the car, and defendant said he did not smoke weed. He asked defendant if he could take a look in the vehicle for contraband, and defendant said no.

The officer ordered defendant out. Defendant was wearing “baggy” clothes and a hoodie. The officer lifted the front of the hoodie and found a revolver.

Suppression affirmed. To justify a pat search for weapons an officer must have a “reasonable suspicion” the detainee may be armed and dangerous. Terry v. Ohio, 392 US 1 (68).

The officer was asked whether he believed defendant was armed or dangerous. He cited defendant’s baggy clothing that “naturally has bulges in it”; and “defendant’s history of weapons” as reasons to pat him down. But when he was asked, “Did you believe he was presently armed and dangerous?” the officer responded, “There’s a good possibility or chance, yes.”

The trial court found this response an indication that the officer’s belief was “all speculative, and he didn’t have any specific or articulable facts to believe that this individual was presently armed or dangerous.” The Court of Appeal affirmed.

Pantoja is distinguished in an unpublished opinion, which I discuss here to remind us that “totality of circumstances” is a grab-bag standard with variables all along the way. This portion of In re Juan A. (2022 WL 15117113, Oct. 27, 2022) is illustrative:

Pantoja is distinguishable from this case. Morales, unlike the officer in Pantoja, immediately conducted a patdown search of Gabriel upon approaching him. Gabriel, unlike the defendant in Pantoja, was not present at his apartment building that happened to be situated in a high crime area. Rather, he was purposefully visiting a memorial site that had particular significance to the Linda Vista 13 criminal street gang, a location known to draw acts of violence. Gabriel was paying respects to the deceased Linda Vista 13 gang member, an activity that increased the likelihood he would arm himself for protection. Unlike Pantoja, in which the defendant’s arrest history was stale, Morales testified to facts indicating there had been shootings at the memorial site within the preceding six months. Accordingly, Gabriel’s citation to Pantoja does not persuade us that his detention and patdown search were unreasonable.

Drones and the 4th Amendment

“Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security.”

So begins the decision in RaceDayQuads,LLC v. FAA, No. 21-1087 (D.C. Cir. Jul. 29, 2022). The case involved a newly adopted FAA rule requiring drones to carry a “Remote ID.”

Remote ID technology requires drones in flight to emit publicly readable radio signals reflecting certain identifying Information, including their serial number, location, and performance information. Those signals can be received, and the Remote ID information read, by smart phones and similar devices using a downloadable application available to the FAA, government entities, and members of the public, including other aircraft operators. The FAA likens Remote ID to a “digital license plate.”

Tyler Brennan, CEO of RaceDayQuads (“a one-stop drone shop”) moved for review and vacatur of the rule. He argued that the location tracking required by the Remote ID Rule infringes a drone operator’s reasonable expectation of privacy, and thus constitutes a warrantless search in violation of the Fourth Amendment.

The court held:

His request for vacatur of the Rule, amounting to a facial challenge, must fail because drones are virtually always flown in public. Requiring a drone to show its location and that of its operator while the drone is aloft in the open air violates no reasonable expectation of privacy. Brennan hypothesizes that law enforcement authorities could use Remote ID to carry out continuous surveillance of drone pilots’ public locations amounting to a constitutionally cognizable search, or that the Rule could be applied in ways that would reveal an operator’s identity and location at a home or in an otherwise private place. But he has not shown that any such uses of Remote ID have either harmed him or imminently will do so, thus he presents no currently justiciable, as-applied challenge.

Child-Porn Cybertips Came From Unbiased Citizen Informants

• Rowland, ___ CA5 ___, ___ CR3 ___ (22) #H048799:

Two anonymous “cybertips” came to the National Center for Missing and Exploited Children (NCMEC). They came from a Microsoft Online Operation employee who viewed two files of apparent child pornography. The cybertip provided the IP address of the computer used to upload the images. The IP was attached to the company AT&T Mobility.

A Los Altos PD detective, Nava, authored a search warrant for the subscriber information and found the name “Richard Rowland” with an address in Los Altos. Surveillance determined the Rowland, aged 84, lived there with his son, Jeffrey, 37.

A search warrant was issued for the residence and two cars on the premises. The following items were seized: two Western Digital storage devices, a Dell tower computer, a PNY thumb drive, an Apple iPhone, an Apple laptop, and an Apple computer. The PNY thumb drive “contained an estimated 1,000 images of child pornography and 25 videos of child pornography.”

In his motion to quash the search warrant, Def. Jeffrey Rowland claimed that the search warrant affidavit failed to state probable cause. He argued the showing was defective because: “The only information in the affidavit linking the contraband to defendant is based entirely on an uncorroborated anonymous tip.” And: “The information linking the images to defendant’s address was four months old, rendering it stale.” Rowland further asserted that “the search warrant affidavit, on its face, is so lacking in probable cause that it cannot even meet the minimum standards of the ‘good faith’ rule.” Rowland urged the trial court to quash the search warrant and suppress the evidence seized, as well as any “statements and derivative evidence.”

The court denied his motion to quash. The Court of Appeal, per Danner, Acting P.J., affirmed.

Although no California court has issued a published decision examining the reliability and credibility of service providers and NCMEC with regard to their reports of child pornography, one federal court of appeals recently “h[e]ld that an NCMEC cyber-tip generated by information provided to NCMEC by an internet company such as Google carries with it significant indicia of reliability. The [relevant federal law] imbues such significant reliability by mandating ‘electronic communication service provider[s] [and] remote computing service[s]’ to report illicit, questionable activity that comes through their servers.” (United States v. Landreneau (5th Cir. 2020) 967 F.3d 443, 453.)

***

Because we conclude the search warrant affidavit demonstrated a fair probability that a search would uncover wrongdoing, there is no need to examine whether the good faith exception to the exclusionary rule applies.