- MENDOZA, 44 CA5 1044, 258 CR3 249 (20) #E071835
A jury convicted Def. of transporting for sale more than four kilograms of cocaine based on evidence a U.S. Customs and Border Protection agent acquired after a stop on Interstate 15. Def. sought to exclude the evidence, arguing the agent did not have reasonable suspicion she was engaged in criminal activity when he stopped her.
The agent said he decided to stop Def. because she was driving in a known smuggling corridor in a vehicle which had crossed the United States-Mexico border in the prior week; she slowed and changed lanes after he pulled alongside her in an unmarked car, rolled down his window, and stared at her; she drove at approximately 50 miles per hour to stay behind him; and she then refused to look at him when she ultimately passed him a few minutes later. The trial court held—albeit with reservations—that the stop was justified, and a jury later convicted her of transporting narcotics for sale. Mendoza appeals her conviction based only on the impropriety of the stop.
The trial court denied suppression. The Court of Appeal, per Slough, Act. P. J., reverses.
Clearly, driving on I-15 out of Mexico is not any ground for a stop. It was the other factors the agent relied on. But here the key fact was the agent was in an unmarked car.
The agent said he also considered the fact that Mendoza slowed and moved over behind him after he pulled alongside to inspect her vehicle. However, the manner of his approach is critical to evaluating Mendoza’s reaction. He acknowledged he drove an unmarked vehicle with no signs of its relation to law enforcement. As a result, when he pulled alongside her it was his conduct that looked suspicious, not hers. (Emphasis added)
The court concludes:
To initiate a stop, an agent must have an objectively reasonable basis for suspicion. The agent in this case did not have such a basis. Nothing about Mendoza’s car suggested she might be involved in criminal activity, and though she sought to avoid the agent, the evidence doesn’t suggest she knew he was law enforcement. That fact undercuts the agent’s inference that she was trying to avoid detection of criminal conduct, but given the setting, Mendoza’s reaction to being observed was so minor it wouldn’t provide adequate ground for suspicion even had the agent been driving a marked law enforcement vehicle. We therefore conclude the agent acted without a reasonable basis for suspicion when he stopped Mendoza, and the trial court erred in denying her motion to suppress.
Parole Search of Cell Phone Upheld Under Totality of Circumstance
- Delrio, ___ CA5 ___, ___ CR3 ___ (20) #A154848
Residential burglary in Redwood City. Surveillance video from a neighbor’s house showed two individuals walking from a black truck to the burglarized house and then walking away, each carrying a sack. After the residents of the home reported the burglary, a deputy sheriff contacted Delrio and told him that a vehicle registered to him had been involved in a burglary. Def. denied any involvement, told the deputy that he had loaned the truck to a coworker, and claimed that if the truck was involved with a burglary, it must have been used without his permission.
The deputy viewed the surveillance video and concluded that one of the two individuals shown in the video had “a very close resemblance” Def., who was on parole.
Deputies conducted parole search of Def’s house and phone. Incriminating pics, and later Def. admitted the robbery.
His suppression motion was denied, and the Court of Appeal, per Fujisaki, J., affirmed.
Def. argued that the parole form used by the California Department of Corrections and Rehabilitation (CDCR) did not check a box regarding “special conditions of parole” that would have required him to give his consent to, and any passwords for, searches of his electronic devices. Thus no notice of giving up his reasonable expectation of privacy in his phone.
The court found this argument to have “surface appeal,” but ultimately unconvincing.
As the California Supreme Court emphasized in Schmitz, Penal Code section 3067, subdivision (b)(3), provides that “every parolee is subject to warrantless and suspicionless parole searches,” and the reasonable scope of a parole search is not “strictly tied to the literal wording of the notification given to the parolee upon release.” (Schmitz, supra, 55 Cal.4th at p. 928.) Thus, while the reasonableness of a probation search has been held dependent on the literal wording of the notification given to a probationer, the reasonableness of a parole search does not derive from a theory of consent as has been found in probation search cases, but rather, is assessed based on the totality of the circumstances.
Re: the totality of circumstances:
Finally, we observe the cell phone search was not arbitrary, capricious, or harassing. (Reyes, supra, 19 Cal.4th at p. 752.) A search is arbitrary and capricious when the motivation for the search is unrelated to rehabilitative, reformative, or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee. (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.) Because the officers here had specific reasons to suspect that defendant was involved in a residential burglary, the search was related to legitimate parole monitoring and law enforcement purposes, and there was no evidence suggesting the officers had personal animosity towards defendant. The search took place at a reasonable hour and was not unreasonably prolonged. (Reyes, at pp. 753–754.)
Also of Note…
- SMITH, ___ CA5 ___, ___ CR3 ___ (20) #D075372: Neighbor reported unoccupied car running in driveway. Off. thought someone might be hurt inside. Entered. Drugs, weapon in plain view. Supp. Den. Rev. No facts indicating emergency medical or exigency.
However, as required by Ovieda, supra, 7 Cal.5th 1034, the officer pointed to no facts that reasonably supported his concern that someone inside the residence might be suffering from a medical emergency such as moaning or groaning from inside the home, blood or vomit near the vehicle or residence, or disarray inside the vehicle or near the home. Rather, the facts known to the officer were insufficient to provide him with ” ‘an objectively reasonable basis for believing’ that medical assistance was needed, or persons were in danger” such that a warrantless search of the residence was justified by the emergency aid exception.
- SHUMAKE, ___ CA5 ___, ___ CR3 ___ (20) Appellate Div. #6093: Offs pulled Def. over for license plate. Smelled MJ. Def. said he had “bud” in container. A little over 1 oz. Off. searched car. Pistol under seat. Supp. Den. Rev. Legal amount of MJ did not give rise to P-C to search.