Category Archives: Blog

Cell Phones and Juvenile Probation Search Conditions

 Below are three decisions on probation search conditions and juvenile cell phones. All three are from the First Appellate District, but three different divisions. I’m indebted to the legendary Al Menaster for help with the squibs.

  • In re Patrick F., 242 CA4 104, 194 CR3 847 (15):

This is a case on juvenile probation conditions requiring the delinquent ward of the court to submit to searches of his electronic devices and social media sites, including passwords.

Patrick F. argued that the search condition imposed by the court was invalid under Lent, 15 C3 481 (75) because it had no relationship to the underlying offense, related to conduct that is not illegal, and was not reasonably related to deterring future criminal activity. He also claimed the condition was unconstitutionally overbroad and poses a risk of illegal eavesdropping.

The court summarized three previous cases, then reached its conclusion:

In In re Erica R. (2015) 240 Cal.App.4th 907, 910–911, 192 Cal.Rptr.3d 919 (Erica R.), Division Two of this court held the condition was invalid under Lent, because it had no relationship to the commitment offense of misdemeanor possession of Ecstasy. Having reached this conclusion, the court found it unnecessary to address the defendant’s constitutional challenge or her claim the probation condition would allow illegal eavesdropping.

In In re Malik J. (2015) 240 Cal.App.4th 896, 899–900, 193 Cal.Rptr.3d 370 (Malik J.), Division Three found the condition to be unconstitutionally overbroad in a case where the defendant’s juvenile probation had been violated based on his possession of marijuana and his commission of three robberies, one of which involved an iPhone. The court in Malik J. modified the search condition to eliminate the requirement that the defendant supply passwords to his social media sites, but allowed a search of the phone itself after it had been disabled from any Internet or cellular connection for the purpose of determining whether it had been stolen.

Most recently, in In re Ricardo P. (2015) 241 Cal.App.4th 676, 193 Cal.Rptr.3d 883 (Ricardo P.) .. .[the] court concluded that although an electronics search condition was valid under Lent because it was reasonably related to monitoring the defendant’s future criminality, the condition was overbroad in allowing the probation officer access to data that was not reasonably likely to reveal whether the defendant was using drugs….

Having had the benefit of our colleagues’ intellectual legwork and thoughtful analyses, we are persuaded by the rationale of Ricardo P., the circumstances of which are the most similar to the case before us. We conclude the challenged electronics search condition, though reasonable under Lent, was overbroad as drafted, and order it modified accordingly. We reject appellant’s contention that the condition must be stricken in its entirety due to the risk of unlawful eavesdropping on third parties.

The minor committed this offense to get money for marijuana, and “access to a teen’s electronic communications and social media can be a useful tool in tracking and monitoring drug transactions, drug usage and communications with other individuals associated with drugs.”


  • In re J.B., 242 CA4 749, 193 CR3 589 (15):

The Court of Appeal here strikes down the electronic devices and social media probation condition, since there was “no evidence connecting the juvenile’s electronic device or social media usage to his offense or to a risk of future criminal conduct.” It disagrees with Patrick F.:

In Patrick F. the court limited the search condition to “a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts.” Whether either of these limitations is any limitation at all seems highly doubtful. In Riley v. California, supra, 573 U.S. at p. ––––, 134 S.Ct. at p. 2492, the United States Supreme Court observed that an Arizona v. Gant (2009) 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 standard allowing a warrantless search of an arrestee’s cell phone whenever it is reasonable to believe that the phone contains evidence of the crime of arrest “would prove no practical limit at all when it comes to cell phone searches.” The Supreme Court also opined that “a rule that would restrict the scope of a cell phone search to those areas of the phone where an officer reasonably believes that information relevant to the crime, the arrestee’s identity, or officer safety will be discovered … would again impose few meaningful constraints on officers. The proposed categories would sweep in a great deal of information, and officers would not always be able to discern in advance what information would be found where.” (Riley v. California, supra, at p. ––––, 134 S.Ct. at p. 2492.)


  • In re Alexandro R., A144398

And now this panel comes along, agrees with Ricardo P. and disagrees with J.B.

We are unpersuaded by the analysis of J.B. for two reasons. First, in adopting a generic test of reasonableness, J.B. disregarded the actual holding of Olguin [45 C4 375 (08)]. In that case, the Supreme Court’s conclusion that the probation condition reasonably related to future criminal conduct was unrelated to any connection between the condition and the probationer’s past or future crimes. On the contrary, the probationer’s keeping of pets was entirely unrelated to any crime he did or likely would commit. Rather, Olguin concluded a probation condition is reasonably related to future criminal conduct if it permits more effective monitoring of the probationer’s compliance with other probation conditions.3 (Olguin, supra, 45 Cal.4th at pp. 380–381, 87 Cal.Rptr.3d 199, 198 P.3d 1.) Nothing more was required.

Second, contrary to the impression created by J.B., Olguin did not announce a generic test of reasonableness for probation conditions.

Another Pre-McNeely Blood Draw Case

  • Jimenez, 242 CA4 1337, ___ CR3 ___ (15): #F067846

Def., driving a truck UI, plowed into a fire hydrant and then a yard, and into two people who died. He told responding officer that he was “coming down off of speed.” He also mentioned he had “blacked out” until he crashed into the hydrant.

Def. was transported to a local hospital, and a blood draw was ordered. Def. was not asked for, nor did he give, consent. The test proved positive for amphetamine and marijuana

Def. moved to suppress the blood evidence, citing McNeely, 569 U.S. ___ (13). When the blood draw was taken, however, McNeely had not been decided and the controlling authority was Schmerber, 384 US 757 (66). The motion was denied.

The Court of Appeal, per Detjen, J., affirmed:

Here, the record shows defendant, after having run over two pedestrians with his truck, informed a hospital nurse he “was withdrawing from methamphetamine.” Paglia, who was present, overheard this remark. In “objectively reasonable reliance” (Davis, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2423]) on Schmerber, then still authoritative, Paglia could “reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence’” (Schmerber, supra, 384 U.S. at p. 770), i.e., the natural evanescence of methamphetamine in the bloodstream. His request for a blood draw to secure evidence of defendant’s drug intoxication fell “within the parameters of the ‘good faith’ exception to the exclusionary rule.” (Rossetti, supra, 230 Cal.App.4th at p. 1076.) Therefore, denial of the motion to suppress was proper.

Officer’s Actions in Stopping Def. Were Coercive –– Illegal Detention

  • LINN, 241 CA4 46, 193 CR3 342 (15):

Napa motorcycle cop observed a Ford Expedition with a driver and passenger, and the passenger holding a lit cigarette out an open window. Cop “just saw a quick flick of the fingers, which appeared to be he was flicking the ashes out the window.” He understood the passenger’s action violated the Vehicle Code.

He followed the Expedition until it parked. He stopped about three feet from the driver side door and got off his motorcycle as the defendant driver and the passenger were getting out of the Expedition.

Defendant testified that she parked her Ford Expedition and was getting out when she first saw Off, who was sitting on a motorcycle parked right next to her car. The first thing he said to her was that he “noticed my passenger flicking ashes out the window.” He asked for her driver’s license. She was smoking and drinking a can of soda, and Helfrich “asked me to put [the cigarette] out” and “put [the can] down.” He did not turn on his emergency lights or siren, use a blow horn, raise his voice or block her path.

Def. voluntarily offered her license to Off. He took it and held it in his hand as he called dispatch and ran a record check on Def. It was about this time that he notice an odor of alcohol on Def., which led to her arrest for DUI.

The trial court granted Def’s 1538.5 motion, but the appellate division reversed, concluding defendant’s encounter with the police officer who arrested her was consensual up to the time that he reasonably suspected she had been driving under the influence.

The Court of Appeal, per Stewart, J., reverses the appellate division and affirms the trial court.

[S]ubstantial evidence indicates that the officer’s actions reviewed in their totality constituted an assertion of his coercive authority before he had any reasonable suspicion to detain defendant. These actions included his stopping within three feet of defendant as she exited her vehicle to, as he told her, talk with her about her passenger’s flicking ashes out of the vehicle’s window as defendant drove, asking her for her driver’s license without explanation as he commanded her to put out her cigarette and put down her soda can, retaining her driver’s license as he conducted an unexplained record check, and questioning of the passenger for personal details that the officer recorded on a form. No objectively reasonable person would believe she was free to end this encounter under the totality of these circumstances, regardless of the officer’s polite demeanor and relatively low-key approach.

People Presented No Evidence That Officer Knew Terms and Limits of Probation Search Clause

  • ROMEO, 240 CA4 931, 193 CR3 96 (15):

Offs conducted a warrantless search on a residence where two people, subject to a probation search clause, lived. Def. lived in the attached garage. Off. observed, in plain view on top of the desk, a clear Ziploc baggie containing 2.444 grams of methamphetamine. He also recovered a small amount of marijuana, wrapped in cellophane, from a cigarette box on top of the desk, as well as six hypodermic needles from a toolbox in the garage.

Def. and the two residents were Mirandized. Def. said he was staying in the garage and that the methamphetamine, marijuana and hypodermic needles found in the garage were his. Def showed signs of being UI, was taken to the station, and his blood tested positive for methamphetamine and opiates.

Def’s 1538.5 motion was denied. The Court of Appeal, per Streeter, J., reversed.

The court first dealt with a Harvey-Madden issue. The testifying Off. said he relied on his familiarity with the probationers, and a law enforcement computer database to establish the residents were indeed on probation. The court holds this is “slight” but enough to justify the Off’s belief in the probation clause.

But that does not end the inquiry. Whether the search itself is reasonable must be based on the circumstances known to the officer when the search is conducted.

However, at the 1538.5 hearing the People did not elicit any testimony from the Off. that he knew the terms or limits of the probation search clause itself.

We conclude that, on this record, the search … cannot be upheld. We are asked to sustain the warrantless search of a residence without any showing that the searching officers knew that the target of their search, the residence itself, fell within the scope of a probation search clause. A probation search carried out by police heedless of any limits in the operative search clause might turn out to be lawful or unlawful—depending on an after-the-fact check. (See Hoeninghaus, supra, 120 Cal.App.4th at p. 1196 [“If, as the People argue, police did not need to know that their authority to search defendant was limited to searching for drugs, then police could search him without any limitation and without any grounds to believe the search was reasonable; and if, after learning about the condition, they claimed that they were looking for drugs, the search could be upheld under the consent exception”].) This is the “search first, justify later” approach that the Supreme Court has consistently decried, while pointing out that it is particularly problematic where third-party non-probationers are involved.

But Hold the Phone…

Deputy Did Not Have Knowledge of Probation Search Condition, But His “Experience” Was Enough

  • Wolfgang, 240 CA4 1268, 193 CR3 256 (15):

Investigating suspicious activity, Deputy knocked on door of a modular home. Def. answered and gave deputy his driver’s license. Deputy ran it through dispatch and was told Def. was on probation for brandishing a weapon. Deputy did not ask dispatch and was not told whether Def’s probation included a search condition. But deputy explained that, based on his training and experience as a 10-year veteran of law enforcement, when a person is on probation for a weapons violation, they have search conditions.

So he searched, and found a loaded .22 rifle. One sticky wicket: Def was not on probation for brandishing a weapon. It was for something else.

Understandably, Def. moved to suppress. Denied. The Court of Appeal, per Ramirez, PjJ., affirmed.

Black letter law is that an officer must know the terms of a search condition before searching (see ROMEO, above). But here the court allows the deputy’s “experience” to fill the gap.

There’s an “even if” analysis that says if this wasn’t a valid probation search, it can still be upheld. I don’t believe the court’s rationale can square with SANDERS, 31 C4 318 or ROBLES, 23 C4 739.

Overhead Emergency Lights Are (Almost Always) a Detention

California Supreme Court

  • Brown, 61 C4 968, 190 CR3 583, 353 P3 305 (15):

You’re sitting in a car when a law enforcement vehicle pulls up behind you and puts on its emergency lights. Would you, being a reasonable person, feel free to drive away?

That was the question in this case. A deputy sheriff was dispatched to investigate a reported fight. He saw Brown’s car coming toward him and yelled at Brown, asking if he saw anything. Brown didn’t respond and drove on.

Which raised the deputy’s suspicions. After leaving the scene, the deputy saw Brown’s car parked a short distance away. He activated his overhead emergency lights and pulled up behind the car. He approached and talked to Brown, who admitted to drinking and being involved in the fight. Brown was charged with DUI.

Brown moved to suppress evidence of his physical condition, statements, and breath test results as the fruits of an unlawful detention. Denied.

The Court of Appeal affirmed Brown’s conviction. The California Supreme Court took on the question of whether the flashing of the overhead emergency lights constitutes a detention. The question is, would a reasonable person in that situation feel free to just take off?

The Court of Appeal held that “when a vehicle is already stopped, without police action, merely activating emergency lights on a police vehicle, without more, does not constitute a seizure within the Fourth Amendment.”

Nay, not so, says the Supreme Court of California:

In People v. Bailey (1985) 176 Cal.App.3d 402 an officer stopped behind the defendant’s parked car and activated his emergency lights. (Id. at p. 404.) Applying the test from United States v. Mendenhall (1980) 446 U.S. 544, 554, the court concluded a detention had occurred because “[a] reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer. Any reasonable person in a similar situation would expect that if he drove off, the officer would respond by following with red light on and siren sounding in order to accomplish control of the individual.” (Bailey, at pp. 405-406.)

The court, however, adds a little wrinkle to the mix:

To be clear, we do not adopt a bright-line rule that an officer’s use of emergency lights in close proximity to a parked car will always constitute a detention of the occupants. “[A]ny assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account ‘ “all of the circumstances surrounding the incident” ’ in each individual case.” (Chesternut, supra, 486 U.S. at p. 572, quoting Delgado, supra, 466 U.S. at p. 215.) As an example, a motorist whose car had broken down on the highway might reasonably perceive an officer’s use of emergency lights as signaling that the officer has stopped to render aid or to warn oncoming traffic of a hazard, rather than to investigate crime. Ambiguous circumstances may be clarified by whether other cars are nearby or by the officer’s conduct when approaching. (See Wilson v. Superior Court (1983) 34 Cal.3d 777, 791 & fn. 11; People v. Garry (2007) 156 Cal.App.4th 1100, 1110-1112.) Here, no circumstances would have conveyed to a reasonable person that Deputy Geasland was doing anything other than effecting a detention. Under the totality of these circumstances, Brown was detained when Geasland stopped behind the parked car and turned on his emergency lights.

So that’s the rule. Now the question becomes were there reasonable grounds for this particular detention? The court holds there were.

The circumstances here include a reliable citizen’s report of a violent fight potentially involving a firearm, the deputy’s very quick response time, and Brown’s presence near the scene of the fight in the otherwise vacant alley. These facts justified this brief detention.

The Stephanie Lazarus S-Ws Supported by Probable Cause, Good Faith  

  • Lazarus, 238 CA4 734, 190 CR3 195 (15):

In December of 2004, members of LAPD’s cold case unit decided to re-opened a murder case. Back in 1986 a woman named Sheri Rasmussen was killed by a couple of slugs from a .38. No one was ever arrested for the murder. But the coroner did manage to preserve some DNA which came from a bite mark on the victim’s arm.

LAPD conducted a new DNA test, produced a profile, fed it into a national database, and got bupkis. A detective then went through all the potential suspects who were interviewed, and lo and behold, one of them was a fellow LAPD detective, working, in fact, right across the hall – Stephanie Lazarus.

Detectives surreptitiously got a discarded drinking cup and straw, ran a test, and bingo—Lazarus’ DNA matched the bite mark DNA.

Now what? The detectives did not rush in and arrest her. They wanted more. And didn’t want her to know she was a suspect. So they took a couple of weeks to rehearse their interrogation of her, then used a ruse. They asked her to come to an official interview room for a sit down, claiming they needed her art-theft expertise on a case. The real reason for the request was so she would (as all cops must) give up her gun before entering the interview room.

Once there the interrogation unfolded, getting more pointed as it went along. Lazarus did not realize she was a suspect until well along in the interview. She was never in custody, was always free to leave.

This interrogation, by the way, can be viewed on YouTube. Lazarus walked out of the interview room, stating she needed to talk to a lawyer.

Two search warrants were issued for Lazarus’ residence. The first warrant sought electronically and digitally stored material, documents, and records related to the homicide, including letters, diaries, journals, writings, newspaper articles, books, correspondence, greeting cards, photographs. The second warrant gave permission to search the “computers, storage media, computer hardware and digital evidence” seized pursuant to the first warrant, including “[email], internet browsing histories, cached information, partially deleted files, records, receipts, screen captures, photographs, logs, [and] printouts.”

Lazarus moved to suppress, based on stale info in the affidavits and overbreadth. The Court of Appeal, per Manella, J., affirmed.

The warrants were supported by probable cause and were not overbroad, based on the nature of the crime and the probabilities of finding evidence thereof. For good measure, the court held that the Good Faith exception would apply here, as a reasonably well-trained officer would not have occasion to distrust the magistrate’s finding of probable cause.

Reasonable Mistake of Law Excuses Unlawful Detention of Bicyclist on Sidewalk

• Campuzano, 237 CA4 Supp.14, 188 CR3 587 (15) #CA256406

In Heien v. North Carolina (2014) ––– U.S. ––––, 135 S.Ct. 530, 190 L.Ed.2d 475, the Supreme Court held that an objectively reasonable mistake of law can excuse an otherwise illegal detention. Meaning the statute or ordinance in question has to be so ambiguous that a reasonable police officer could genuinely be confused about its reach.

Well, such an ordinance was at issue in a case decided by the San Diego Appellate Division. The facts:

The defendant was straddling his bicycle and operating it at a “very slow, walking speed” on the sidewalk of a business district, alongside of a female companion who was walking. Two police officers approached and detained him at the corner for “riding on a bicycle in a business district” in violation of San Diego Municipal Code subdivision (a) of section 84.09.

The defendant became “agitated, confrontational and belligerent.” Off. thought he was under the influence, cuffed him, and had him sit on the police car bumper. He was eventually arrested for being on drugs.

Def. moved to suppress, challenging the detention, arguing that he did not violate the ordinance:

San Diego Municipal Code section 84.09 (Bicycle Riding Restricted) provides:

(a) No person shall operate a bicycle upon any sidewalk fronting any commercial business establishment unless official signs are posted authorizing such use.

The officers here interpreted the ordinance expansively, as applying to the whole block. But the court held that the ordinance was limited only to that portion of the sidewalk actually fronting a physical establishment.

In the instant matter, the officers’ interpretation of San Diego Municipal Code section 84.09, subdivision (a) was a mistake of law. The focus of our inquiry is whether the officer’s mistake of law was objectively reasonable under the facts of the case to support the reasonable cause to stop and detain the defendant. (Heien v. North Carolina (2014) ––– U.S. ––––, 135 S.Ct. 530, 190 L.Ed.2d 475.) In this opinion of first impression on the interpretation of the municipal ordinance, we discuss the expansive and narrow interpretations of the statute. There was no prior guidance for the officers in interpreting the ordinance. Under the facts of this case, we find that it was objectively reasonable for the officer to read the ordinance expansively8, giving rise to a reasonable cause to stop and detain the defendant for a violation of San Diego Municipal Code section 84.09, subdivision (a), an infraction. Further, there was probable cause to arrest him for that infraction. (See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549; People v. McKay (2002) 27 Cal.4th 601, 607, 117 Cal.Rptr.2d 236, 41 P.3d 59; People v. Gomez (2004) 117 Cal.App.4th 531, 538–539, 12 Cal.Rptr.3d 398.)

Under the totality of the circumstances, there was no prolonged detention because immediately after the stop and detention for the infraction, the officer observed the defendant’s objective symptoms of drug intoxication and had probable cause to arrest the defendant for being under the influence of a controlled substance.

Traffic Stop Prolonged For Dog Sniff Violates 4th

United States Supreme Court

RODRIGUEZ, ___ US ___, 135 SC 1609, ___ LE3 ___ (15) #13-9972

A Nebraska cop, Stuble, pulled over a Mercury Mountaineer for driving on the shoulder. Rodriguez was the driver. After Rodriguez identified himself, Struble asked him why he had driven onto the shoulder. Rodriguez replied that he had swerved to avoid a pothole. Struble then gathered Rodriguez’s license, registration, and proof of insurance, and asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to do so, and Struble answered that he was not. Rodriguez decided to wait in his own vehicle.

After running the documents, Stuble issued a “warning ticket” to Rodriguez. With the purpose of the stop now over, Stuble asked for permission to have a dog sniff the car. Rodriguez refused. Struble then ordered Rodriguez out of the vehicle and to the patrol car. Seven minutes later a deputy sheriff with a drug sniffing dog. Struble led the dog around the car and, Bark!, the dog alerted. The cops recovered a big bag of meth.

The United States Supreme Court, 6-3, holds that this is a violation of the 4th Amendment.

The issue is simple: once the purpose of traffic stop has been satisfied, is the detainee free to go? Or can the police get away with a “slight” delay in order to conduct further investigation?

From the majority opinion by Justice Ginsburg:

Like a Terry stop, 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…Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.”

Kennedy, Thomas, and Alito dissented. Ginsburg addressed one point Alito brings up:

An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But contrary to JUSTICE ALITO’s suggestion, … he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.

California Court of Appeal

Wiretap of Cell Phone Valid

Sedillo, 235 CA41037,185 CR3 907 (15)

Defendant was convicted of five counts of attempted murder and one count of shooting at an inhabited dwelling. The convictions arose out of a gang-related shooting in 1992. The actual shooter, was convicted in 1995 of murder and attempted murder. Defendant was the driver of the getaway car, and although witnesses identified defendant from a photo array, no witness was able to identify defendant at a live lineup, and as a result, defendant was not charged in connection with the crime. In 2010, a wiretap of defendant’s phone in an unrelated matter recorded statements in which defendant admitted her involvement in the December 1, 1992 murder, and in May 2010, defendant was charged in connection with the shooting.

On appeal, Defendant challenged the validity of the wiretap of her cell phone.

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

A wiretap must be supported by a finding of probable cause, necessity, and minimization. A trial court’s determination that the documentation supporting the wiretap authorization application is sufficient is entitled to substantial deference and is reviewed for abuse of discretion.

Inaccurate DUI Test Admonition Did Not Render Consent to Blood Draw Involuntary

• Harris ___ CA4 ___, ___ CR3 ___ (15) #E060962

In Missouri v. McNeely (2013) 569 U.S. ___, 133 S.Ct. 1552, the United States Supreme Court held that, before the police may conduct a nonconsensual blood test of a motorist who is arrested on suspicion of driving under the influence of alcohol (DUI), the police must either obtain a warrant from a magistrate or later show that exigent circumstances prevented them from timely obtaining a warrant.

The appellate division held that McNeely did not foreclose consensual blood tests conducted under the implied consent law, and that defendant’s voluntarily and freely given consent satisfied the Fourth Amendment.

The Court of Appeal, per McKinster, Acting P.J., affirms, holding that McNeely does not apply because voluntary consent to the blood draw satisfies the 4th Amendment.

But was the consent truly voluntary? Or was it coerced out of the Def. by an improper advisement that warned of dire consequences that were not true?

What happened was this. After a stop on suspicion of DUI, a deputy sheriff named Robinson ran field sobriety tests, concluded Def. was UI and arrested him. He then advised Def. that he was required to submit to a blood test. Didn’t mention the breath test at all. He then laid out the dire consequences of refusal—suspension of license “for the next two or three years,” and use of the refusal in court.

Def. said, “Okay.”

At the sheriff’s station, a phlebotomist with whom Deputy Robinson had previously worked drew defendant’s blood. Deputy Robinson observed the phlebotomist swab the inside of defendant’s right elbow with what appeared to be a disinfectant. The phlebotomist then obtained a blood sample from defendant using a hypodermic syringe. Deputy Robinson testified that defendant did not resist the blood draw or say, “no, I don’t want to do this.” The phlebotomist packaged the sample, and Deputy Robinson placed it into the station’s blood depository.

So was this voluntary consent? Def. argued no way! First of all, it’s not truly voluntary if a cop tells you better do something, or else. And second, the advisement itself was false. The license suspension here would have been only for a year, and the Def. could have chosen a breath test if presented to him.

The court holds that a test admonition is not, in and of itself, coercive. But it also holds that the false admonition here falls into the no harm, no foul line of cases (my verbiage). The court’s verbiage was this: “Deputy Robinson’s admonition, though not entirely accurate, was not patently false.”

This seems to your humble reporter an odd doctrine. For at what point does “inaccurate” cross over into “patently false”? When does mishandled become mendacious? When does dissembling become deceitful?

Why not make it simple on everybody and require law enforcement to follow the law as it is actually written?

Mistake of Law May Excuse Illegal Stop

• Heien, ___ US ___, 135 SC 530, ___ LE2 ___ (14) #13-604

A deputy sheriff in North Carolina followed a Ford Escort because he thought the driver looked nervous. When the Escort braked for a stop, the officer saw that one of the brake lights was out.

So the officer pulled the Escort over to write up a warning ticket. During the stop he thought the driver and Heien, who was in the back seat, looked suspicious. So he asked for consent to search the car, got it, and found cocaine in a duffel bag.

Heien contested the search, asserting that state law did not require two working brake lights. The trial court denied suppression, but the Court of Appeals reversed, citing the relevant statute that required “a stop lamp” on the rear. But the Supreme Court of North Carolina reversed the appellate court.

So the question before the United States Supreme Court was whether an officer’s reasonable mistake about the law can excuse a stop in violation of that law.

Yes it can, says the Court, with a couple of big conditions attached.

First of all, the law must really and truly be ambiguous. So ambiguous that a “reasonable” officer could be confused about its application.

This narrows the so-called “mistake-of-law exception.” It must be an objectively reasonable mistake. Note the language in Justice Kagan’s concurring opinion: the statute must pose a “really difficult” or “very hard question of statutory interpretation.”

In this case, the stop lamp law had never been interpreted by a North Carolina court. And there was another statute that could reasonably be interpreted as requiring rear lamps (plural).

So: When a mistake of law case comes along and it is decided the officer’s mistake was reasonable, it means ipso facto that the officer misinterpreted the law. The court decision will have laid out the correct interpretation, and therefore it will never again be objectively reasonable for an officer to make that same “mistake.”

Why not? Because the Supreme Court specifically rules out “sloppy” study:

Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) ….Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.

So there will be two issues at suppression hearing: is the law truly ambiguous? And what sort of student of law is the officer?

NOTE #1: There are a number of California cases that have suppressed evidence based upon an officer’s mistake of law. These all now have to be read in light of Heien. Some will still be valid. For example, in ARTHUR J., 193 CA3 781, 238 CR 523 (87), an officer detained a minor at 5:45 a.m. because he believed the curfew law applied between the hours of 10 p.m. and 6 a.m. Oops. The curfew law was until 5 a.m. There is nothing ambiguous about that statute. So ARTHUR J. is still good law, as is TERESINSKI, 30 C3 822, 180 CR 617, 640 P2 753 (82) (another curfew case where the statute was unambiguous).

NOTE #2: The San Diego Appellate Division, in CAMPUZANO, 231 CA4 Supp. 9 (14), held pre-Heien that a mistake of law, even with a poorly-designed city ordinance, did not save the detention of a guy on a bike. This might have gone the other way post-Heien, because the ordinance was hard to figure out. But here’s the thing. Now that the ordinance has been officially interpreted, officers cannot be excused for the mistake again. And thus does Fourth Amendment jurisprudence wind its way toward greater certainty, albeit slowly.

Immediate DNA Collection From Arrestees Violates 4th

• BUZA, 231 CA4 1446, 180 CR3 753 (14)

From the court’s opinion:

The sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, as amended (Pen. Code, § 295 et seq.) (the DNA Act), which requires that a DNA sample be taken from all adults arrested for or charged with any felony offense “immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest . . . .” (§§ 296.1, subd. (a)(1)(A); 296, subd. (a)(2)(C).) In a prior opinion, we held that the seizure of appellant’s DNA shortly after his arrest, at a time when he was entitled to the presumption of innocence and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures. (People v. Buza, A125542, Aug. 4, 2011.) The case now returns to us with directions from the California Supreme Court to vacate our prior decision and reconsider the matter in light of Maryland v. King (2013) ___ U.S. ___ [133 S.Ct. 1958] (King).

We have done so, and again reverse the judgment of conviction under the DNA Act. As we will explain, because of significant differences between the California DNA Act and the Maryland law considered in King, we question whether King establishes the validity of the California Act’s application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.

Police Told to Stay Outside, But They Don’t, And That’s Called Consent?

• Rodriguez, 231 CA4 288, 179 CR3 843 (14)

Police come to a home without a warrant. They are investigating possible child porn possession. They knock and ask to come in and the resident does not give consent. The cops say, Look, we can go get a warrant and come back and “kick your door in.” Defendant comes to the door. Doesn’t give consent. In fact, tells the cops to stay outside. But they don’t. They just enter. The facts in the case do not anywhere say they were given verbal consent.

Once inside, they started talking, and eventually the Defendant gave the officers consent to take his computer, which had child porn on it.

Clearly an illegal entry, right? No consent. No words to that effect. The only words were, Stay outside. The judge hearing the motion to suppress agreed. Motion granted. Case dismissed.

But then it was re-filed, and the motion renewed, only before another judge. (There is a big procedural issue here regarding the reassignment of the motion to a new judge).

The new judge denied the motion.

I’m still not sure why. The court found that the threat to “kick in the door” was not “coercive,” but I still didn’t see any consent given to enter. I only see that it was explicitly denied. Somehow, the police end up inside the residence and somehow consent was deemed given.

So this gets filed under HS, for Head Scratcher.

Warrantless Search of Videos Copied from Computer Violates 4th

• MICHAEL E., 239 CA4 261, 178 CR3 467 (14)

Def. brought his computer to Sage’s Computer in Fort Bragg for servicing. In the course of working on the computer, an employee viewed images on the computer of what appeared to him “to be underage girls engaged in sexual activity.” He felt it appropriate to call the Fort Bragg Police Department to inquire whether these materials were “something that they should be looking at.” Officer who responded to the phone call and viewed the files at the repair shop, stated that although the girls in the photos he viewed were posing in a sexual manner, none of them were nude or “engaging in sexual activity or simulating any sexual activity.”

Indicating he did not consider the images pornographic, Off. asked employee whether he “could search through and look at” anything else in the computer. After further examining Def’s computer files, employee found video files he had not previously noticed. When directed by Off. to open these files, he tried to but was unable to do so. He was, however, able to put the video files on a USB flash drive, which he gave to Off., who took the drive to the Fort Bragg Police Department.

When he was unable to open the files on his own computer, Off. gave the flash drive to a sergeant, who was able to open and view the videos it contained. They concluded the vids depicted “[f]emale juveniles engaged in sexual activity.” The next day they seized the computer.

Def’s motion to suppress was denied. The Court of Appeal, per Kline, P.J., reversed.

They key to the case was the trial court’s ruling that the computer’s hard drive was the functional equivalent of a “closed container.” Thus, when the employee examined the hard drive, he was conducting a private citizen search, which is not covered by the 4th Amendment. Reporting it to the cops, reasoned the trial court, and the subsequent search of the contents, was merely an extension of this private search.

Not so fast, say the Court of Appeal. The United States Supreme Court recently decided in RILEY, 573 US ___, 134 SC 2473 (14) that a cell phone’s data cannot be searched without a warrant. That being so, the same rationale applies to computers.

The Supreme Court’s analysis in Riley highlights the dangers inherent in lawyers and judges cavalierly applying established legal theories to new technologies, without carefully exploring the factual differences between such technologies and the objects traditionally found appropriate for those theories’ application. (See Riley, supra, 134 S.Ct. at p. 2491.) As the Tenth Circuit Court of Appeals has observed: “ ‘Since electronic storage is likely to contain a greater quantity and variety of information than any previous storage method, . . . [r]elying on analogies to closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.’ [Citation.]” (United States v. Carey (10th Cir. 1999) 172 F.3d 1268, 1275; see also Lessig, The Path of Cyberlaw (1995) 104 Yale L.J. 1743, 1752 [urging courts to “follow the meandering development of the common law” before “venturing too boldly” into the regulation of cyberspace].)



Good Faith Reliance on California Precedent Before U.S. Supreme Court Overrulings

Two cases hold that police relied in good faith on existing California precedent, even though the United States Supreme Court subsequently overruled such precedent.

Macabeo, ___ CA4 ___, ___ CR3 ___ (14) #B248316

Officer stopped Defendant on his bicycle for failing to stop at a stop sign. They asked Def. if he was on probation or parole, and Def. told him that he was on probation for “methamphetamine.”

After he told the Off. he did not have anything illegal in his possession, Off. initiated a pat down search and then asked Def. for consent to search his pockets. Def. said, “Yeah, sure.” Off. removed various items from defendant’s pockets, including a cell phone, and handed the items to his partner

Warrantless search of the cell phone found a picture folder that contained pictures of young girls under the age of 18 engaged in sexual activity. Possession or control of such pictures was a violation of Penal Code section 311.11, subdivision (a).

Def. moved to suppress. Denied. This appeal followed.

When the search took place Diaz (2011) 51 Cal.4th 84, upholding a warrantless cell phone search incident to arrest, was good law.

But while this case was on appeal the United States Supreme Court reached the opposite conclusion in Riley v. California (2014) __ U.S. __, 134 S.Ct. 2473 [cell phones my not be searched incident to arrest absent exigent circumstances]

The Court of Appeal, per Mosk, J., affirmed:

Although the warrantless search of defendant’s cell phone was unlawful under the recent decision in Riley, supra, the search falls within the good faith exception to the exclusionary rule. Thus, the failure of the trial court to suppress the evidence obtained from the search of the cell phone does not require a reversal of the trial court’s order denying defendant’s motion to suppress or his conviction.


Youn, ___ CA4 ___, ___ CR3 ___ (14) #B253401

Officer responded to the scene of a traffic accident. He observed Defendant, being loaded into an ambulance, was combative, “actively trying to move his arms, fight with the paramedics”; had “rapid unintelligible speech”; and was “in and out of [consciousness].”

So the Off. followed the parade to the hospital, where Def. was also combative with the hospital staff, so they began to sedate him. Off. placed Def. under arrest and asked a nurse to draw blood from Def. The blood draw occurred about three hours after the accident. The Off. found out, “just prior to the blood draw,” that defendant was on probation for driving under the influence.

The blood showed signs of meth and marijuana.

Def. moved to suppress. He argued that the United States Supreme Court decision in McNEELY, 569 US ___, 133 SC 1552, 185 LE2 696 (13), which was decided after the facts of this case, held there is no per se rule that blood may be drawn from a DUI suspect. The “totality of circumstances” must be considered.

This holding overrides the California precedent in effect before McNeely.

Same result as in Macabeo, above. Because the Off. relied “in objective good faith” on California law at the time, suppression is denied.

Opinion by Grimes, J.


No Probable Cause to Detain House Resident. Consent to Search Vitiated

 LUJANO, ___ CA4 ___, 176 CR3 534 (14)

 Two Riverside police officers on patrol saw a man in the driveway in front of a house stripping copper wire from an air conditioning unit. The officers approached and spoke with the man, Vargas, who said he was there visiting a friend inside the house. Vargas also admitted to being on probation “for narcotics.” He explained he was stripping copper wire from the air conditioner because it no longer worked.

A side door that led from the driveway into the house was ajar—partially open, but not enough to walk through. Off. approached the door and leaned inside, identifying himself as a police officer and commanding anyone in the house to come to the door. Def. responded, coming out from the bedroom and following orders to turn around and walk backwards out of the door.

Off. asked Def. for consent to search his person; Def. gave his consent. Plastic bag of methamphetamine in Def’s pants pocket, at which point he was arrested.

Def. consented to a search of the residence. Weapons.

Def. moved to suppress the evidence, claiming his illegal detention and arrest made subsequent consent invalid. Motion denied. The Court of Appeal, per Hollenhorst, Acting P.J., reversed.

The court held that there was no probable cause to believe that Def. was involved in any criminal activity. When the Off. ordered Def. to turn around and walk out backwards, that was an illegal detention.

The consent followed the illegal detention, and there were no intervening circumstances to attenuate the taint. All of the evidence should have been suppressed.


Requesting Someone to Sit on Curb Makes It a Detention

IN RE J.G., 228 CA4 402, 175 CR 183 (14):

Officer saw 15-year-old J.G. walking across a parking lot toward D.G., who is J.G.’s brother. J.G. was carrying a backpack. Off parked to initiate “a consensual encounter.”

He asked where they were going, and they said to a party. Other officers arrived.

During this encounter Off. asked for ID (it was given) and for consent to search J.G.’s person. “Yes.” A patdown and pockets search found nothing. Off. asked the brothers if “they would be willing to have a seat on the curb.” They sat. Then Off. asked J.G. if he could search his backpack. “Yes.” Smith & Wesson semiautomatic pistol.

J.G. moved to suppress. Denied. The Court of Appeal, per Humes, J., reversed.

A consensual encounter becomes a detention when police “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 US 429 (91).

J.G. argued that his age should be part of the calculation. The court did not decide that, because “we need not resolve the issue here because we conclude that a reasonable person in J.G.’s position would not have felt free to go regardless of his or her age.”

We begin by accepting that Officer Woelkers’s interaction with J.G. began as a consensual encounter. “Approaching a person, requesting to speak with him [and] asking for permission to search him . . . do not transform an otherwise consensual encounter into a detention.” (People v. Coulombe (2000) 86 Cal.App.4th 52, 57, fn. 3.) Nor did Officer Woelkers’s request for J.G.’s identification, name, and birthdate transform the encounter into a detention. (See Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County (2004) 542 U.S. 177, 185 [“[i]n the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment”].) But the consensual encounter turned into a detention as Officer Woelkers’s suspicions persisted without apparent reason, as the encounter became increasingly intrusive, as the minutes passed, and as the police presence and show of force grew. We conclude that by the time Officer Woelkers asked J.G. to sit on the curb, a reasonable person in J.G.’s circumstances would not have felt free to end the encounter.

Cell Phones May Not Be Searched Incident to Arrest Says Unanimous Supreme Court

• Riley v. California, 573 US ___, 134 SC 2473, ___ LE3 ___ (14) #13-132

In a rare unanimous opinion on a search case, the United States Supreme Court holds that law enforcement must first obtain a search warrant before checking the contents of a cell phone. In doing so they explicitly reject the idea that such a search is justified as “incident to arrest.”

The decision combines two cases with simple fact patterns. Riley’s was as follows

Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted.

The California Court of Appeal affirmed.

The United States Supreme Court, per Roberts, C.J., reversed and remanded. The gist of the holding:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s per- son. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.

The Court recognized that there may be case-specific exigent circumstances (such as a child abduction or the texting of an accomplice to detonate a bomb) which allow for a cell phones data to be searched. But that was not the case here.

In his concurring opinion, Justice Alito said:

Many forms of modern technology are making it easier and easier for both government and private entities to amass a wealth of information about the lives of ordinary Americans, and at the same time, many ordinary Americans are choosing to make public much information that was seldom revealed to outsiders just a few decades ago….In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.

NOTE: The contrary holding of the California Supreme Court in Diaz, 51 C4 84, 119 CR3 105, 244 P3 501 (11) is no longer good law.

No Detention With Police Emergency Lights on Parked Car; Split in Appellate Courts

• Brown, 226 CA4 142, 171 CR3 480 (14)

In People v. Bailey, 176 CA3 3402 (85), the court held that emergency lights from a police car would lead a reasonable person to believe he is being detained.

This case disagrees with Bailey, and holds that when a car is parked, police lights alone don’t amount to a detention.

Sheriffs were investigating a report of a fight in an alley. They drove in as Def’s car drove out, but didn’t see any people. They turned around and found Def parked, with brake lights on. They pulled up and turned on the overhead emergency lights.

Approaching, a deputy caught signs of intoxication. Eventually Def was arrested and charged with DUI. His suppression motion was denied.

The Court of Appeal, per Huffman, Acting P.J., affirmed.

Brown asserts he was detained the moment the deputy turned on the overhead lights on the patrol car, even though Brown had previously stopped on his own. Brown relies primarily on the opinion of the Sixth District Court of Appeal in Bailey, supra, 176 Cal.App.3d 402. There a divided panel of the court concluded that: “A reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer. Any reasonable person in a similar situation would expect that if he drove off, the officer would respond by following with red light on and siren sounding in order to accomplish control of the individual.”  (Id. at p. 406.)


The basic thrust of the analysis in Bailey is that red lights are a showing that police will chase you if you do not remain stopped.  The analysis does not take into account, as did the dissent, that there needs to be some evidence that the person yielded to that show of authority.  In the case of a stopped vehicle approached by police, we believe there must be something more than merely activating the red lights to accomplish a detention…