• DiMAGGIO, ___ CA5 ___, ___ CR3 ___ (24) #H051516:
Search warrant was issued for Def’s cellphone and tablet for text and images relating to a sexual assault accusation. The S-W had a limited date range and specified searching only images with “time stamps.” Offs searched beyond the scope and found child porn.
Def’s motion to suppress was denied. The Court of Appeal, 2-1, per Danner, J., reversed.
A search pursuant to “a valid warrant may nonetheless be unreasonable if the officers conducting the search exceed the scope of the warrant and, for example, begin looking for files that are not related to the subject of the search warrant.” (United States v. Johnston (9th Cir. 2015) 789 F.3d 934.)
The People argued, and the court below agreed, that the Good Faith Exception applied to the facts here.
The key to this good faith exception “is ‘that the officers properly executed the warrant and searched only those places and for those objects that it was reasonable to believe were covered by the warrant.’ ” [citing MacAvoy, 162 CA3 476 (84)].
In this case, however:
An objectively reasonable officer would understand that date and time limitations in a search warrant for electronic information would require them to filter the data in a manner that returned only items falling within that timeframe. Conversely, an objectively reasonable officer would not conclude that including items without timestamps would yield only items that comply with the temporal parameters of the search warrant. Rather, they would understand that such a search would be likely to yield both items that fall within the specified timeframe and items that fall outside of it.
***
Because Acevedo, Gonzalez, and Hoskins did not act within the scope of the search warrant in conducting their search of DiMaggio’s cellphone, but, rather, intentionally disregarded and substantially exceeded the limitations in the warrant’s scope, the good faith exception does not apply.
Bamattre-Manoukian, Acting P.J., dissented.
Loose Marijuana in Plain View, Plus Other Factors, Gave P-C to Search Auto
- Sellers, ___ CA5 ___, 324 CR3 650 (24) #C100036:
Traffic stop. Defendant was passenger. Officer asked driver for license and if there was any marijuana in the car. Driver said no. But Officer saw in the back of the vehicle a tray “commonly used for rolling marijuana cigarettes or blunts.” The tray was covered in a sticky residue “consistent with marijuana.”
Another Officer conducted a plain view search by peering through the rear passenger’s side window with a flashlight. He saw “crumbs” of marijuana scattered on the rear floorboard, as well as “somewhat larger” “round circular nuggets” of marijuana under the front passenger seat.
Based on the loose marijuana observed on the floorboard, together with the marijuana rolling tray and other factors, the officers concluded there was probable cause to search the vehicle. They asked Defendant and driver to exit the vehicle so officers could perform the probable cause search. As Defendant was preparing to exit the vehicle, Officer asked if he had any weapons on him. Defendant responded that he had a firearm, which was located on the side of the passenger seat. Officer found a black nine-millimeter handgun underneath the front passenger seat.
Defendant was charged with unlawful possession of a firearm by a person previously having been adjudged a ward of the court (Pen. Code, § 29820).
Defendant moved to suppress the MJ and gun. Denied. The Court of Appeal, 2-1 per Kraus J., affirmed. Dissent by Duarte, J.
Since the passage of Proposition 64,courts have held that lawful possession of marijuana in a vehicle, by itself, does not provide probable cause for a warrantless search on the theory that there may be a greater, unlawful amount of marijuana in the vehicle…. [W]hile possession of a lawful amount of marijuana alone is insufficient to establish probable cause, it may support a finding of probable cause if it is coupled with other factors contributing to a reasonable belief that the vehicle contains contraband or evidence of criminal activity.
***
Defendant’s principal argument is that small amounts of “stray marijuana” scattered around the floorboards of a vehicle does not provide probable cause for a search….The People argued that, based on the totality of the circumstances, the police had probable cause to conduct the search based on the evidence that (1) the suspects seemed nervous, (2) the suspects falsely stated there was no marijuana in the vehicle, (3) officers saw a marijuana rolling tray in the back of the vehicle, and (4) officers observed a “usable” amount of loose marijuana scattered on the floorboard.
The court noted that while Proposition 64 decriminalized the use and possession of marijuana in limited circumstances, it did not decriminalize marijuana use and possession in all circumstances, and VC 11362.3 subdivision (a)(4) states that it is unlawful to “[p]ossess an open container or open package of cannabis . . . while driving, operating, or riding in the passenger seat or compartment of a motor vehicle . . . .”
Defendant argued there was no “open container” violation because the marijuana observed by the police officers was not in a “container.”
Defendant’s argument does not hold up under scrutiny. Although the words used in a statute are the most useful guide to its intent, the language of a statute should not be given a literal meaning if doing so would frustrate the purposes of the legislation or lead to absurd results….It would defy logic to conclude that an individual with an unsealed container or open package of marijuana is violating the law, while someone with usable amounts of marijuana scattered loosely on a seat or around the passenger compartment is not.
Ordering Out of Auto Does Not Require Justification
- Ramirez, 104 CA5 315, 324 CR3 583 (24) #G063224:
Traffic stop. Offs ordered Defendant out of car. Saw handgun. Supp. Rev. Per Mimms, 434 US 106 (77), no “articulable justification” needed for ordering out of vehicle.
Side note: D.A.’s brief said trial court “fabricated” a legal theory to grant the motion. The court here says, “We advise the district attorney in the future to be more cautious and consider his language more carefully when challenging a ruling of a trial court in an appellate brief, or he may be subject to sanctions. Words are to lawyers, as scalpels are to surgeons. They are tools to be used with precision.”