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.