• ROSAS, 50 CA5 17, ___ CR3 ___ (20) #B295921
Oxnard Police Officers Coronel and Salvio responded to a report of a suspicious person in a passenger truck in front of the residence. When the officers arrived at the location, they saw appellant sitting in the driver’s seat of a parked truck with the driver’s side door open.
Appellant said he lived just two houses away and had come outside to smoke a cigarette and listen to music. He gave his name and address, said he did not have a driver’s license, and added that he had a state identification card but did not have it on him.
During this exchange, Officer Coronel walked over to the front passenger window of the truck, shined a flashlight through the slightly-open window and into the front passenger compartment, and moved the flashlight around to illuminate the compartment.
Officer Salvio asked, “Do you have any probation or parole or anything like that?” Appellant replied, “No.”
Officer Salvio called police dispatch to run a records check to confirm appellant’s identity and determine if he had any warrants or was on probation or parole. The dispatcher verified appellant’s identity and address and stated that appellant was on probation out of Kern County and was a “290 registrant.” However, the dispatcher said nothing about probation search conditions.
Officer Salvio conducted a search of appellant, and found meth. In the truck he found a glass pipe with meth residue.
Appellant’s 1538.5 motion was denied. The Court of Appeal, per Perren, J., reverses.
Before an officer can conduct a warrantless probation search, he has to know that the probation has search conditions attached. In this instance, Def. was actually not on probation; but nevertheless, the erroneous report did not mention conditions.
Officer Salvio testified that he was a young officer, and assumed anyone on probation has a search condition attached. The trial court, in denying the motion, said, well, “99.9 percent of the time that’s true.”
It is well-settled, however, that “the [probation] exception is inapplicable if police are unaware of the probation search condition at the time of a warrantless search.” (People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1184, italics added.)
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It is thus clear that the warrantless searches of appellant’s person and truck cannot be upheld as probation searches. Moreover, the People failed to meet their burden of proving that the good faith exception to the exclusionary rule applied; indeed, the People offered no evidence whatsoever on this issue.
Yegan, J., filed a dissent.
Without expressly saying so, the fair import of the majority opinion is that the officers in the field cannot rely on a police dispatcher who is reading from a rap sheet and they cannot draw the inference of search terms from a grant of probation. This is a novel claim and is at variance with common sense and experience. And this mistake is not subject to the good faith exception to the exclusionary rule? This is also a novel claim.
Odor of Marijuana Alone No Longer Provides an Inference That Car Contains Contraband
- JOHNSON, ___ CA5 ___, ___ CR3 ___ (20) #C089373
Defendant was parked on the side of a road when two police officers approached to investigate his car’s missing registration tag. Defendant ended up handcuffed in the patrol car for resisting an officer.
After defendant was detained, one of the officers approached defendant’s car to perform what the officer described as a tow inventory search. The officer smelled marijuana emanating from the car and found a plastic bag containing “[p]ossibly a couple grams” of marijuana in the center console. The bag was knotted at the top. The search then purportedly transitioned from an inventory search into a probable cause search, which revealed a loaded handgun in the rear cargo area of the car.
Defendant sought to suppress the evidence from the search, but the motion and his renewed motion were denied. The magistrate and trial judge found the search was not an inventory search, but upheld it based on probable cause. Defendant pled no contest to being a felon in possession of a firearm.
The Court of Appeal, per Robie, Acting P.J., reversed.
Prop 64 legalized possession of up to 28.5 grams of marijuana by individuals 21 years or older. The People, however, argued that, even though the baggie containing the marijuana was knotted at the top, the fact that it could have been untied at some point meant it constituted an open container within the meaning of Health and Safety Code section 11362.3, subdivision (a)(4). In the People’s view, this violation of the open container law gave the officers probable cause to search the rest of the vehicle.
In summary, the facts in this case comprised of a parked car missing a registration tag and having an expired registration, the odor of marijuana emanating from the car, the observation of a tied baggie containing “a couple grams” of marijuana in the car’s center console, and defendant’s actions outside the car in resisting the officers. The totality of these circumstances did not amount to a “fair probability that contraband or evidence of a crime” would be found in defendant’s car. (Illinois v. Gates, supra, 462 U.S. at p. 238 [76 L.Ed.2d at p. 548].) Accordingly, the search of defendant’s car violated the Fourth Amendment.
Officer’s Unreasonable “Mistake of Law” Renders Arrest Illegal
- Gerberding, 50 CA5 Supp. 1, 263 CR3 702 #2816
Officer approached homeless encampment where a loaded shopping cart with a broken wheel was obstructing the sidewalk. When Def. refused to move it, he was detained but resisted arrest. The arresting officer thought he was upholding a local city ordinance, to wit:
No person shall stand or sit upon any street so as in any manner to hinder or obstruct the passage therein of person passing along the same, or so as in any manner to annoy or molest persons passing along the same…
Def. contended that the ordinance specifies “no person,” which the shopping cart most assuredly was not.
The plain language of FMC section 13-109 only prohibits blocking a street with one’s body, not one’s property. Thus, Officer Kahn was mistaken when he concluded that appellant was violating FMC section 13-109.
The focus of our inquiry turns to whether Officer Kahn’s mistake of law was objectively reasonable under the facts of the case to support the probable cause to arrest appellant.
To be reasonable, the law upon which the mistake was made must be truly ambiguous. In this case, the court holds, it was not. The ordinance applies only to persons. Thus, the mistake-of-law reliance was unreasonable.