Unlawful Auto Detention Can’t Be Retroactively Cured By Passenger Probation Search Condition
• BATES, 222 CA4 60, 165 CR3 573 (13) #H037910:
Deputy sheriffs responded to a disturbance involving two males and one female. Deputies Skelton and Gidding, as well as other deputies, arrived at the same time and interviewed the three people present. One of the individuals reported that his cell phone had been taken from him. He described the assailant to Deputy Skelton as a black male, just older than high school age, wearing a navy blue shirt, navy blue pants, and a navy blue jacket. He also told the deputy he had seen the assailant around the area before, and that the assailant’s name might be “Marcus.” The other male present when the deputies arrived was Shelton’s uncle, Michael Lesui, who recited Shelton’s statements that the perpetrator threatened to shoot Shelton if he did not give up his phone and that the perpetrator drove a gold van.
Deputy Fenster, who also responded to the disturbance call, learned that defendant was a felony probationer who matched the general description of the assailant and lived in a nearby apartment complex. After learning defendant’s probation terms included a warrantless search condition, Deputy Fenster directed Deputy Gidding to drive to the apartment complex where defendant lived and to stop the gold van used by defendant’s family if he saw it leave the complex.
Deputy Skelton ultimately informed the other deputies over the radio that a person matching the assailant’s general description was walking west toward a mobile home park. Based on that information and a statement from another deputy that the person walking could be Marcus Bates, Deputy Gidding drove part way through the mobile home park and stopped his patrol car on the side of the park’s single access road.
Within two minutes of Deputy Skelton’s radio broadcast, Deputy Gidding noticed a tan car driving toward the park’s exit. Deputy Gidding got out of his patrol car and signaled the car to stop.
When Deputy Gidding approached the tan car, he noticed the passenger in the back seat was also a black male. After he told the occupants he was investigating a crime and asked them for identification, the passenger in the back seat identified himself as “Marcus Bates.” He was wearing a blue zip-up hooded jacket, a blue shirt, and blue jeans. Deputy Gidding asked him to get out of the car and placed him in handcuffs.
Defendant moved to suppress all evidence obtained as a result of Deputy Gidding’s stop of the tan car, arguing the stop violated the Fourth Amendment. The trial court denied the motion.
The Court of Appeals, per Grover, J., reversed.
From these facts, and considering them in light of the totality of the circumstances, we conclude the deputy had no reasonably articulable suspicion that either the occupants of the tan car or the car itself may have been involved in criminal activity. Instead, it appears Deputy Gidding made the stop based solely on the possibility that the suspect might be riding in the vehicle. It is logical to assume that a suspect might get into a vehicle to leave the location of a crime and its investigation. Without more, however, that assumption does not rise to the particularized suspicion necessary to detain the vehicle and its occupants.
The People argued that the probation search condition should be applied “retroactively.” The court rejected this argument, distinguishing People v. Durant, 205 CA4 57 (2012):
Unlike the officer in Durant, who stopped a car based on a perceived traffic violation, Deputy Gidding stopped the tan car without any observation of possible wrongdoing. As we discussed previously, Deputy Gidding’s conduct was based on a hunch that defendant might be in the vehicle. Though we do not suggest Deputy Gidding acted in bad faith, we find his suspicionless stop of the tan car nonetheless purposeful for our attenuation analysis. Based on this finding, together with our determination that defendant’s probation search condition was an insufficient attenuating circumstance, we conclude that the evidence obtained as a result of the detention and search should have been suppressed.
Warrantless Cheek Swab for DNA Permissible
[NOTE: Review has been granted by the Cal. Sup. Court. Below opinion is no longer authority]
* Lowe, 221 CA4 1276, 165 CR3 107 (13):
Def. was arrested for a sex crime in 2006 and subjected to a warrantless buccal (inner cheek) swab for DNA.
The DNA profile was subsequently used to convict Def. on several burglary and sex crimes. He appealed, contending that the warrantless swab violated the 4th Amendment and the evidence should have been suppressed.
The Court of Appeal, per Nares, J., affirmed the denial of suppression.
Under Prop. 69, passed in 2004 by the voters of California, a cheek swab is to be taken from all persons arrested for any felony offense. After a lengthy analysis of the factors involved, the court held:
We conclude that the legitimate governmental interests promoted by the warrantless collection of buccal swab DNA samples from felony arrestees who are taken into custody upon probable cause, far outweigh the arrestees’ privacy concerns. Our conclusion is based on the following five reasons: The felony arrestee’s diminished privacy interests; the de minimis nature of the physical intrusion involved in the collection of a buccal swab DNA sample; the carefully limited scope of the DNA information that is extracted; the strict limits on the range of permissible uses of the DNA information obtained and the significant criminal penalties imposed upon those who violate those limitations; and the strong law enforcement interests in obtaining arrestees’ identifying information, solving past and future crimes, deterring future criminal acts, and exonerating the innocent.
Accordingly, we hold that the 2004 Amendment authorizing the mandatory and warrantless collection and analysis of buccal swab DNA samples from felony arrestees does not violate the Fourth Amendment. Thus, we also conclude the court properly denied Lowe’s suppression motion.