Nov 19 2024
Temporary Detention

Pretext Stops and the Timing of Prolonged Detentions

• Valle, 105 CA5 195, 325 CR3 730 (24) #A169080:

Santa Rosa Police Officer Wright was on patrol with his partner. Wright saw defendant Valle pumping gas at a local station. He recognized Valle from prior investigations as an active gang member and noticed that the vehicle did not have a front license plate. He decided he would make a traffic stop due to the missing plate. Wright did not suspect Valle of any other illegal activity at that time.

Three minutes before the stop, Wright’s partner called a canine officer to assist. Wright intended to have the canine conduct an open-air sniff of Valle’s vehicle for possible weapons. Wright was concerned about officer safety because of a gang feud.

They pulled Valle over and Wright informed him why he was being stopped. He ran a license and registration check, which came back valid, along with Valle’s prior arrests for drugs and firearms, and a felony conviction. Wright began writing a citation for the missing plate when the canine officer arrived.

A dog alerted to the driver’s side door. Wright found a loaded handgun in the console.

The trial court granted Valle’s suppression motion, holding that this was a pretext stop. The officers didn’t write the ticket at the gas station, but let Valle drive off so they could stop him when the dog was on the way. The judge also held that the detention was unduly prolonged.

The Court of Appeal, per X, J, reversed.

On the issue of unduly prolonged detention:

[T]he court held that Valle’s detention was unduly prolonged because the traffic stop should have begun earlier, at the gas station, rather than in the parking lot after Valle drove approximately a quarter of a mile. … A traffic stop begins for purposes of the Fourth Amendment when an officer pulls a vehicle over for a traffic infraction. (People v. McDaniel (2021) 12 Cal.5th 97, 129–130; accord, People v. Ayon (2022) 80 Cal.App.5th 926, 936 (Ayon); id. at pp. 937–938 [“the relevant time frame started from the point at which the car was first pulled over and ended once the dog alerted to the presence of drugs in the car”].) We know of no case holding that a Fourth Amendment seizure occurs at any time prior to effectuating the stop, and counsel for Valle has cited none.

The defense contended that the stop was pretextual, and that VC 2806.5 (which went into effect 1/2024) disallows such stops. The statute requires that a peace officer making a pedestrian or traffic stop, before engaging in any questioning relating to “a criminal investigation or traffic violation,” must inform the pedestrian or driver of the reason for the stop, unless withholding the reason is necessary to protect against an imminent threat to life or property.

[The] trial court apparently also based its decision to grant the motion to suppress on its belief that the new legislation would make pretext stops illegal. his was incorrect. The United States Supreme Court has long held that, under the Fourth Amendment, “the constitutional reasonableness of traffic stops” does not depend “on the actual motivations of the individual officers involved.” (Whren v. United States (1996) 517 U.S. 806, 813.)

Further Thoughts on the “Community Care” Exception*

  • CANIGLIA, 593 US ___, 141 SC 1596, 209 LE2 604 (21) [*from SCOTUSblog and other sources]

Edward Caniglia had an argument with his wife, during which he allegedly threatened to harm himself. His wife left and later requested a wellness check from the police. Upon arrival, the officers persuaded Caniglia to undergo a psychological evaluation. While he was away, they entered his home without a warrant and seized his firearms, allegedly for his safety. Caniglia later sued, arguing that the officers violated his Fourth Amendment rights by entering his home without a warrant.

The core legal question was whether the “community caretaking” exception—originating from the 1973 case Cady v. Dombrowski—applies to home entry. In Cady, the Court had permitted warrantless searches of vehicles under certain conditions, based on the idea that police sometimes act outside their typical law enforcement role to ensure public safety. This exception allowed officers to enter vehicles without a warrant in situations posing a danger to the community or the vehicle’s owner.

In a rare unanimous decision, the Supreme Court ruled that the “community caretaking” exception does not extend to the home. Justice Clarence Thomas, writing for the Court, emphasized that the home has a unique place in Fourth Amendment jurisprudence as a protected domain. The Court underscored the importance of maintaining strict limitations on warrantless searches and seizures within private residences.

Justice Thomas wrote, “What is reasonable for vehicles is different from what is reasonable for homes.” The Court made it clear that Cady was limited to vehicle searches and that expanding the exception to homes would pose a substantial risk to individual privacy rights. The decision also highlighted the constitutional priority placed on privacy within one’s home, a sphere where police power should not intrude without a clear and compelling justification, typically requiring a warrant.

The Court’s decision reaffirmed the Fourth Amendment’s protection of the home from unreasonable searches and seizures. The ruling signifies a check on the expansion of police power into the realm of individual privacy, especially in personal spaces. If the “community caretaking” exception had been extended to homes, it could have potentially broadened police authority to enter private residences without judicial oversight, creating the risk of abuse and diminished accountability.

This decision also distinguishes between the state’s interest in promoting public welfare and the individual’s right to be free from unwarranted government intrusion. The ruling implies that while the government can intervene in certain situations to protect public safety, such interventions should not violate constitutional rights unless exceptional and well-defined circumstances exist.

Furthermore, Caniglia provides insight into the Court’s approach toward “reasonableness” under the Fourth Amendment. The decision reaffirms that what may be considered reasonable for vehicles or public spaces cannot necessarily be assumed reasonable within a home. This line of reasoning underscores the Court’s dedication to the idea that homes occupy a uniquely protected space in American law.

Caniglia also illustrates the tension between public safety interests and individual rights—a recurring theme in Fourth Amendment jurisprudence. By narrowly construing exceptions to the warrant requirement, the Court reinforces the principle that any erosion of Fourth Amendment protections must be closely scrutinized. This aligns with other recent decisions emphasizing limitations on law enforcement’s ability to circumvent the Fourth Amendment in situations that do not involve criminal activity.

This ruling reflects the Court’s emphasis on safeguarding civil liberties even in cases involving mental health or potential harm, illustrating a nuanced approach to balancing individual rights with community needs. The Court’s stance in Caniglia signals that while mental health and safety concerns are valid, they cannot justify arbitrary intrusions into personal spaces without proper legal safeguards.

Happy Holidays

Courtroom Compendiums begins its 56th year in 2025!

Thank you, Subscribers! See you in January.

Sep 23 2024
Good Faith, Probable Cause, Temporary Detention

Good Faith Didn’t Save Search Beyond Scope of Warrant

• 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.”

Jul 20 2024
Good Faith

Good Faith Reliance on Erroneous Database Info

• Pritchett, 102 CA5 355, 321 CR3 173 (24) #A168411:

Def. had been placed on three-year probation for a misdemeanor with a search condition. A year-and-a-half later, Assembly Bill No. 1950 went into effect, limiting the maximum term of probation a trial court is allowed to impose for most misdemeanor offenses to one year.

Def’s probation was thus terminated. But a database, Crimnet, used in Sonoma County, still listed her as on active probation with the search condition.

A narcotics detective relied on the database to conduct a warrantless search of Def’s hotel room, and found fentanyl.

Def. was charged with one felony count of possession for sale of a controlled substance. (Health & Saf. Code, § 11351.) She moved to suppress. In her motion, she argued that AB 1950 applied retroactively to her probation, and as a result it was terminated when AB 1950 became effective. Therefore, she argued, the warrantless search of her room was unlawful.

She acknowledged that law enforcement was not “directly” at fault for Crimnet’s erroneous information about her probation status but contended the evidence should be excluded anyway since that information was the only basis for the search.

The trial court granted her motion. The Court of Appeal, per Langhorne Wilson, J., reversed.

On this record, we cannot conclude that Vlahandreas would or should have known that the information on Crimnet regarding Pritchett’s probation status was incorrect. Crimnet contains information directly from the judicial system, including whether a person’s probation had terminated. Vlahandreas found Crimnet accurate and could not recall an instance where he had incorrectly noted someone in the system was on searchable probation. He had been a detective for three years and used Crimnet extensively in his investigations. He used it to check Pritchett’s probation status the morning of the search, and it showed that her probation was still active and included a condition that she submit to warrantless searches of her residence. The record reveals no reason for Vlahandreas to believe Crimnet provided erroneous information in this instance. Based on these facts, he was acting objectively reasonably when he relied on Crimnet.

P-C For One Charge Does Not Defeat 4th Violation on a Baseless Charge

  • CHIAVERINI, 602 U.S. ___, 44 SC 1745, ___ LE2 ___ (2024) #23-50:

This is a malicious prosecution case under 42 U. S. C. §1983. From the syllabus:

This case involves a dispute between petitioner Jascha Chiaverini and police officers from Napoleon, Ohio. The officers charged Chiaverini, a jewelry store owner, with three crimes: receiving stolen property, a misdemeanor; dealing in precious metals without a license, also a misdemeanor; and money laundering, a felony. After obtaining a warrant, the police arrested Chiaverini and detained him for three days. But county prosecutors later dropped the case.

Chiaverini, believing that his arrest and detention were unjustified, then sued the officers, alleging what is known as a Fourth Amendment malicious-prosecution claim under 42 U. S. C. §1983.

To prevail on this claim, he had to show that the officers brought criminal charges against him without probable cause, leading to an unreasonable seizure of his person. The District Court, however, granted summary judgment to the officers, and the Court of Appeals for the Sixth Circuit affirmed.

The Court of Appeals held that Chiaverini’s prosecution was supported by probable cause. In holding this, the court did not address whether the officers had probable cause to bring the money-laundering charge. In its view, there was clearly probable cause to charge Chiaverini with the two misdemeanors. And so long as one charge was supported by probable cause, it thought, a malicious-prosecution claim based on any other charge must fail.

Held: The presence of probable cause for one charge in a criminal proceeding does not categorically defeat a Fourth Amendment malicious-prosecution claim relating to another, baseless charge.

For the majority, Justice Kagan writes:

Consider first how that result follows from established Fourth Amendment law. Under that Amendment, a pre-trial detention (like the one Chiaverini suffered) must be based on probable cause….Otherwise, such a detention counts as an unreasonable seizure. And even when a detention is justified at the outset, it may become unreasonably prolonged if the reason for it lapses….So if an invalid charge—say, one fabricated by police officers—causes a detention either to start or to continue, then the Fourth Amendment is violated. And that is so even when a valid charge has also been brought… [Citations omitted]

In dissent, Justice Gorsuch wrote:

[T]he Court today doubles down on a new tort of its own recent invention—what it calls a “Fourth Amendment malicious-prosecution” cause of action….Respectfully, it is hard to know where this tort comes from. Stare for as long as you like at the Fourth Amendment and you won’t see anything about prosecutions, malicious or otherwise. Instead, the Amendment provides that “[t]he right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated.”

As its language suggests, the Fourth Amendment supplies nothing like a common-law claim for malicious prosecution.

Consciousness of Guilt May Be Based on DUI Blood Draw Refusal

  • Bolourchi, ___ CA5 ___, ___ CR3 ___ (24) #A167289:

The Court of Appeal, per Streeter, J.:

Under Vehicle Code section 23612, subdivision (a)(1)(B), “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his or her blood, if lawfully arrested for” driving while under the influence of a drug in violation of section 23152, subdivision (f). The question presented here is this: If, following a valid arrest for such an offense, a motorist refuses to cooperate in the taking of a blood test unless a warrant is first obtained, may the jury at the motorist’s ensuing DUI trial draw an adverse inference of consciousness of guilt based on that refusal?

Our answer is yes.

May 20 2024
Probable Cause, Temporary Detention

“Odd” Behavior in “Known Narcotics Area” Not Enough to Justify Detention

     • FLORES, ___ C5 ___, ___ CR3 ___, ___ P3 ___ (24) #S267522

At 10:00 p.m. at night, on a cul-de-sac known for illegal drug and gang activity, police saw Flores standing alone in the street beside a Nissan parked at a red curb. Flores looked at the officers, walked around the back of the car, then “ducked” behind it. The officers pulled up and parked behind the Nissan.

Officer pointed his flashlight into the car and saw what looked like a drug pipe. In response to the officer’s inquiries, Flores said that the Nissan was his and his wallet, and identification, were in the driver’s side door pocket. Guy retrieved the wallet, looked inside, and found a folded dollar bill containing suspected methamphetamine. Officers also recovered a revolver from a backpack.

Flores’s suppression motion was denied. The Court of Appeal, in a 2-1 decision, affirmed.

The California Supreme Court, per Corrigan, J., reverses.

His acts of ducking out of sight, bending with his hands by his shoe, and not acknowledging the officers’ presence, suggest an unwillingness to be observed or interact. But they are not the “consummate act of evasion.” (Wardlow, supra, 528 U.S. at p. 124.) The officers certainly could have continued to observe Flores as he stood on the public street. But the behavior here, while noteworthy, does not support a reasonable suspicion that he was engaged in illegal activity. In short, Officer Guy failed to articulate “more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” (Wardlow, at p. 124, quoting Terry, supra, 392 U.S. at p. 27.)

***

Here, unlike Wardlow and Souza, there was no headlong flight. The other factors discussed by Souza — early morning hour and multiple persons all engaged in evasive conduct — were likewise absent. And, unlike Brown, there was no contemporary citizen request for assistance due to criminal activity in the location where Flores was seen. The circumstances here, viewed in totality, are insufficient to provide reasonable suspicion that Flores was engaged in criminal activity.

Our conclusion does not leave officers without the means to follow up on behavior they view as calling for additional investigation. Flores was present in a high crime area and repeatedly tried to avoid being seen by, or engaging with, the police. hose facts are certainly noteworthy. The officers would have been well within the bounds of the Fourth Amendment to continue to watch Flores as he stood on the street, as did the detective in Terry. They were entitled to approach Flores and engage him in consensual conversation. They could have asked if he needed assistance, or had himself noted anything out of the ordinary in the vicinity. If they made additional observations while doing so, those observations may have changed the calculus. But Flores’s mere refusal to cooperate “d[id] not furnish the minimal level of objective justification needed for a detention or seizure.” (Bostick, supra, 501 U.S. at p. 437; accord, Wardlow, supra, 528 U.S. at p. 125; Royer, supra, 460 U.S. at p. 498 (plur. opn. of White, J.).)

Reasonable Suspicion to Detain Was Not Probable Cause to Search Auto 

  • MOSLEY, 101 CA5 243, 319 CR3 887 (24) #C099530

Sacramento County Sheriff’s Department received a call concerning a group of men in the parking lot of an apartment. The caller said the men were creating a music video, and one of them was holding a handgun. The caller described the man holding the handgun as thin, approximately 16 to 17 years old, and wearing “all black clothing.” Deputies and detectives from the Gang Suppression Unit responded to the call.

The location was in territory claimed by the East Side Pirus gang. A Detective Farrow recognized a “heavyset” man dressed in black as a validated member of the East Side Pirus, with a history of firearm arrests. He also recognized D.M., a juvenile.

The group was instructed to put their hands in the air. D.M. immediately took off running but was apprehended within two minutes. A search of D.M.’s person revealed he was carrying a firearm. A search of D.M.’s car revealed another firearm. All members of the group—including petitioner—were detained.

Petitioner (the “heavyset man”) was patsearched, cuffed, and placed in a patrol car. A Detective Johnson spoke with him and learned he had driven himself to the apartment complex in his wife’s car, which was parked approximately 20 feet away. Johnson twice asked petitioner for permission to search the car. Petitioner twice declined.

The detectives searched the car anyway. They found a loaded magazine on the front right floorboard. They then searched petitioner again. They found a Glock handgun. Petitioner was placed under arrest.

His suppression motion was denied. The Court of Appeal, per Renner, J., reversed.

The People argued the detectives had probable cause to search the car because: 1. Petitioner was a validated gang member with a history of firearms arrests and convictions, who partially matched the description of the person said to be waving a firearm in the music video. 2. His presence in an area known for gang activity, and the filming of the music video—a medium said to convey messages of dominance and power to rival gangs.

The court held: These arguments are misplaced, because they focus on probable cause to arrest or detain, rather than probable cause to search.”

[C]onsidering the totality of the circumstances, we conclude reasonable officers armed with the information known to Detectives Farrow and Johnson would not have believed they had probable cause to search the car for evidence of a crime or contraband because, at that point, they had no reason to believe such evidence or contraband would be found there. We therefore conclude the automobile exception does not apply, and the search of the car was made without probable cause.

Also, detention was also unduly prolonged, because the “man with the gun” was described as thin, approximately 16 to 17 years old. In other words, not “heavyset.” Thus when the detectives caught D.M. and found a gun on him, their mission was complete.

Bulky Jacket, Nervous Look, Awkward Sitting Insufficient to Justify Detention

  • JACKSON 100 CA5 730, 319 CR3 317 (24) #B328954

Midnight, two officers in a cruiser saw Jackson alone in a parked SUV. They pulled alongside, close enough so Jackson would have to squeeze to get out. One officer went to Jackson’s side of the car, the other walked to Jackson’s passenger side. Both shined flashlights.

The officers said Jackson was wearing a “big bulky jacket” on a “hot” and “humid” night. He “was seated kind of awkwardly in the driver’s seat.” And when they approached in the dark and shined flashlights on him, he looked “uncomfortable and kind of nervous,” like he was “surprised to see us.”

The Court of Appeal, per Wiley, J., reversed the denial of Jackson’s suppression motion. “Collectively, these justifications did not create a reasonable suspicion of criminal activity. The detention was invalid.”

Mar 19 2024
Privacy, Temporary Detention

Officer Flashlights and Proximity is a Detention

• PAUL, ___ CA5 ___, 318 CR3 142 (24) #B320488:

On patrol, Offs noticed a parked Toyota Prius with the lights on. Saw a male driver talking on the phone. Offs approached the Prius from either side, standing close and shining flashlights in. Off engaged in conversation, asked Def. if he was on parole or probation. Parole.

Parole search of the car found a firearm. Def. moved to suppress. Denied. The Court of Appeal, per Moor, J., reverses.

The question was whether the initial contact by police was a detention. In other words, would a reasonable person have felt free to leave?

The court says no.

First, the officers were too close to the car for Def. to drive away without contacting them.

Second, shining the flashlights in from two sides was a show of authority, citing Tacardon, 14 C5 235 (22) and Kasrawi, 65 CA5 751 (21) [Rev. Pen. Cal. Sup. Ct.]

Nor did it matter that the tone of the officer was “non-confrontational.”

If the officer’s tone and words had been aggressive, it would be an additional reason for a reasonable person to believe that he or she was being detained. The converse is not necessarily true, however—the officer’s courteous manner of speaking did not overcome the impression that he intended to detain Paul, which he and his partner conveyed through their actions.

Recordings From City Streetlight Cameras Are Not a Search

  • Cartwright, 99 CA5 983, 317 CR3 472 (23) #D080606:

A gold Yukon parked in front of a flooring store in San Diego. A woman in disguise went in, followed by Def. wearing granny mask and sunglasses. Def. shot and killed the owner and took the money from the register. The accomplice drove away in the Yukon. Def. walked behind a nearby clothing store and removed his mask, an action captured by the store’s security camera. He then used two different white sedans to leave the area.

A detective accessed streetlight camera footage. These cameras are fixed in position and located throughout downtown San Diego and other parts of the city. Footage is stored on each camera’s hard drive for five days; if it is not retrieved within five days, the camera records over the footage.

The video revealed the Yukon, which the DMV tagged as belonging to Def. Police arrested him and, in a subsequent search, found evidence linking him to the robbery-homicide.

Def. moved to suppress the evidence as “fruit of the poisonous tree.” Denied.

The Court of Appeal, per Dato, J., affirms.

The cameras, by their very nature and limitations, do not reveal the transit patterns of people throughout the county. The information they capture is all information voluntarily conveyed to anyone in a public space who cares to look—something any police officer could have done without a warrant.

Cartwright had no objectively reasonable expectation of privacy when he used the public streets and sidewalks downtown in a manner readily observable to passersby. We therefore conclude the police did not conduct a “search” when they accessed footage from City’s streetlight cameras and, accordingly, there was no violation of the Fourth Amendment.

The court distinguished the fixed cameras here with the cell-site records seized in CARPENTER, 585 US ___, 138 SC 2206, 201 LE2 507 (18):

The United States Supreme Court in Carpenter specifically indicated that its holding was intended to be narrow and did not extend to “conventional surveillance techniques and tools, such as security cameras.” (Carpenter, supra, 138 S.Ct. at 2220.) Recordings from cameras, such as the ones that captured Cartwright’s movements in the downtown urban environment in the middle of a weekday, do not rise to the same “unique nature of cell phone location records.” (Carpenter, at p. 2217.) Indeed, “ ‘[a] person traveling . . . on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ”

“Total Suppression” of Evidence May be Appropriate in Certain “Egregious” Cases

  • Helzer, 15 C5 622, , 317 CR3 246, 541 P3 489 (24) #S132256:

The California Supreme Court has never formally adopted the federal doctrine of “total suppression.” This doctrine holds that officers may conduct a search that so exceeds the parameters of the search warrant that suppression of all seized evidence is warranted. See, e.g., FOSTER, 100 F3 846 (10th Cir. 1996).

In this death penalty affirmance, the Court assumes “for argument’s sake that the remedy of total suppression may be appropriate in extreme circumstances of flagrant government misconduct.”

It then goes on to analyze the facts and find nothing egregious here, nor that the police were motivated “by a desire to engage in indiscriminate ‘fishing’ rather than by ‘considerations of practicality.’ ”

In sum, we assume for argument’s sake that the remedy of total suppression may be appropriate in extreme circumstances of flagrant government misconduct. Even so, we conclude defendant has not shown the drastic remedy of suppression of all evidence is warranted here. He has not demonstrated that the executing officers grossly exceeded or flagrantly disregarded the terms of the warrants at issue. Even assuming some of the items seized were not identified in the search warrants, this does not transform an otherwise valid search warrant into an unconstitutional general warrant. The behavior of the officers, the conditions under which the evidence was obtained, and the nature of the evidence seized — whether viewed individually or collectively — does not convince us that this extreme remedy is warranted.

Whimsical Wanderings

Random reflections to lift your spirits and provide a welcome relief from the rantings and ravings that are all too common. Follow thoughts, words, and deeds to fresh perspectives and a few smiles. Please check out my Whimsical Wanderings newsletter:

jamesscottbell.substack.com

Jan 20 2024
Exigent Circumstances, Search Warrants, Standing

Blood Draw From Unconscious Person Not Justified by Exigent Circs or Good Faith

  • ALVAREZ, ___ CA5 ___, ___ CR3 ___ (23) #D080585:

Officers responded to a fatal accident scene. Defendant Alvarez had driven one of the cars and seemed “uninjured but shaken.” Emergency medical arrived and took Alvarez and the sole survivor from the other car to the hospital.

An officer went to the emergency room to request a blood draw from Alvarez, but he was not responsive. The officer ordered one taken anyway. Two-and-a-half hours had elapsed between the accident and blood draw.

Was this permissible under the exigency exception to the warrant requirement?

In Mitchell, 588 US ___,139 SC 2525 (19), the Supreme Court held “when police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.”

Key word, almost.

The court here cites McNEELY, 569 US ___, 133 SC 1552 (13), which held that officers need a blood-draw warrant if one is practical to obtain.

Here, the court found in the record that a telephonic warrant was possible and would not have hindered the investigation. When asked why he did not seek one, the officer had stated, “I just didn’t think of a warrant at that time. . . . And I don’t think I was thinking I should get a warrant or I shouldn’t get a warrant. That didn’t cross my mind at that time, I guess.”

So no exigent circumstances here. The People, however, argued another exception: Good faith, specifically, good faith reliance on the applicability of California’s implied consent law.

Generally, an unconscious or incapacitated person is “deemed not to have withdrawn his or her consent” and a blood or breath test may be administered without giving any admonition about loss of driving privileges.

However, the person must be lawfully arrested for violation of certain sections of the VC, or there must be probable cause to arrest.

Alvarez was not arrested for any offense at the time of the blood draw, and the officer had made no decision to arrest him. Officer Yost had not yet determined who was at fault in the collision. Nor did probable cause exist to support the warrantless blood draw.

Does Forcing Finger to Free Up Phone Frustrate Fourth?

  • Ramirez ___ CA5 ___, ___ CR3 ___ (23) #H049957:

Suspecting Def of lewd and lascivious contact with several minors, Officer obtained a warrant to search Def’s phone for photos and videos. In the warrant application the Off stated: “Your affiant requests permission to contact [defendant] so that we can use his fingerprint to open his cell phone. … It has been my training and experience that newer smart phones are difficult to access absent the passcode or fingerprint even with recent technological advancements. … [¶] Your affiant will attempt to get [defendant’s] cooperation in order to obtain his fingerprint. Should he not cooperate with you[r] magistrate’s order, your affiant request[s] permission to use reasonable force to obtain his fingerprint on his cell phone.”

At the jail, the Off “grabbed” Def’s hand and “guided it toward the phone.” The Def pulled away, but then allowed Off to “guide” his hand toward the phone, while stating, “I’m not giving you permission to do that.” A fingerprint on Def’s left hand unlocked the phone, and Off looked through the contents of the phone, finding lewd images.

Def’s motion to suppress was denied. The Court of Appeal affirmed.

The issue of whether compelling Def to provide his finger is itself a search under the Fourth Amendment was not resolved, because the court held that the S-W authorized the use of “reasonable force” to get the print, even though that was not on the face of the warrant. Def argued it had t be there.

However, defendant cites no authority for the proposition that the magistrate’s authorization to use his fingerprint was required to be contained on the face of the warrant rather than in the probable cause statement that was incorporated into the warrant. Generally, “the scope of the officer’s authority is determined from the face of the warrant and not from the affidavit.” (Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 109.) Here, nothing on the face of the warrant either specifically authorized Gonzalez to unlock the phone with defendant’s fingerprint or prohibited Gonzalez from taking this action. A deficient description of the place to be searched or items to be seized may be cured by reference to the affidavit where “(1) the affidavit accompanies the warrant at the time it is served, and (2) the warrant uses suitable words of reference which incorporate the affidavit by reference. [Citations.]” (People v. MacAvoy (1984) 162 Cal.App.3d 746, 755.)

However, the court gave an “even if”—

Even if the electronic communications search warrants could not be reasonably understood to encompass the compelled use of defendant’s fingerprint, suppression of the evidence discovered on defendant’s phone was not required because the good faith exception to the exclusionary rule applies.

Def also argued that the compelled digit violated his right against self-incrimination, but the court ruled that a finger unlocking a phone is not “testimonial in nature.”

Def argued that using physical force to get the print violated due process.

In performing a search or seizure of a person, law enforcement “may not use unreasonable force to perform a search or seizure of a person.” (People v. Rossetti (2014) 230 Cal.App.4th 1070, 1078.)…[The] physical force [Off] used to effect the unlocking of the phone was minimal and reasonable.

No Standing to Challenge Search of Phone

  • Banks 97 CA5 376, 315 CR3 428 (23) #B312618:

Def was stopped for a traffic violation. Off observed MJ, and also a 14-year-old girl passenger (Doe). A check revealed Def’s license was suspended and there was a misdemeanor traffic warrant for his arrest. A search of the car turned up “revealing clothing,” wigs, condoms. Def was arrested and Doe questioned at the station. Doe consented to a search of her cell phone and signed a consent form. Officer searched the phone and saw information that confirmed his belief that Def was involved in human trafficking or sex for money.

Def moved to suppress the phone evidence. The trial court found no standing. But Def asked the court to find a reasonable expectation of privacy in the data transmitted to a third party because of the “complex, detailed and private nature of smartphone communication.”

The answer is, no. We decline the invitation to depart from this well-settled doctrine.

Nov 18 2023
Consent, Patdown Search, Temporary Detention

Detention and Patdown of Driver Justified by Officer Safety

• Esparza, 95 CA51084, 313 CR3 360 (23) #D080703:

After defendant Christopher Esparza was pulled over for a Vehicle Code violation, a detective who specializes in gang enforcement recognized him and two of his passengers as members of a local gang. The detective thought Delfino Osnaya, one of the passengers, was likely to be armed and told the other officers they needed to search him. After their patdown of Osnaya yielded a loaded gun, the officers searched Esparza as well and found another loaded weapon.

The detention lasted seven minutes.

Esparza’s 1538.5 motion was denied. The Court of Appeal, per Dato, J., affirmed.

Esparza argued: (1) the officers lacked reasonable suspicion that he was armed and dangerous when they conducted his patdown, and, in any event, (2) the detention lasted too long because the traffic stop went beyond what was necessary for the officers to issue him a citation for tinted windows.

By the time officers conducted the patdown search of Esparza, they had already gathered a considerable amount of specific information. Esparza had been identified by a veteran gang detective as an established gang member who was driving a car with (at least) two other gang members.   At the moment of the traffic stop, he was driving through contested territory claimed by both his gang and a rival group. Each of the gangs were known for violent activity. A ghost gun with a magazine of ammunition had just been found on one of his passengers.   Given that “consideration of the modes or patterns of operation of certain kinds of lawbreakers” is a permissible point of reference from which a “trained officer [can] draw[ ] inferences and make[ ] deductions” (Cortez, supra, 449 U.S. at p. 418), there was enough here to reasonably infer that Esparza may have been armed and dangerous in that moment. To say otherwise would be tantamount to undermining all of the specialized knowledge about gang operations gathered by investigators who are deeply immersed in tracking such activity and would impermissibly shrink Terry stop analysis to an artificially confined scope.

***

Esparza’s second argument focuses on the length of his detention, asserting it was unduly prolonged because it went beyond the officers’ only necessary tasks: to run his license and then issue him a citation for tinted windows. After conducting a thorough review of how the traffic stop proceeded, we are convinced that at each juncture the officers acted within the bounds of the law. Any delay that resulted from Arreola’s decision to wait for backup was reasonable in light of his justifiable safety concerns. As a result, the brief investigation of Osnaya that took place in the interim did not prolong the detention.

***

Finally, we address Esparza’s reliance on People v. McGaughran (1979) 25 Cal.3d 577, 581 (McGaughran), which is distinguishable on the facts alone. In that case, an officer stopped a car for driving the wrong way on a one-way street, and then detained the car for over a half hour while he checked for warrants, called for backup, and rechecked the warrants. He spent a significant portion of that time sitting in his car alone without displaying the kind of concern for officer safety present in this case. In contrast, the total time between the initial detention of Esparza’s car and his patdown search was about seven minutes.

Consent to Search Car Was Coerced By Threat to Tow

  • BOITEZ ___ CA5 ___, ___ CR3 ___ (23) #C098102:

Officer pulled defendant over for failing to come to a complete stop at an intersection. Off. asked Def. for license, registration, and insurance. Def. had none. It was Def’s mother’s car.

Off. asked for consent to search car. Def. looked nervous. Off. said, “Look, I’m not giving you a ticket for running the stop sign, I’m not giving you a ticket for the insurance stuff, and I’m not towing your car. That seems like a pretty good deal. If I tow your car, brother, you ain’t getting it back till Monday. That’s the tow plus two days of storage, maybe three . . . .” Def. asked whether his sister, who had a valid license, could take the car. Off. replied, “That’s what I’m trying to work out with you, man. You be cool with me brother; I’ll be cool with you….I’m trying to cut you a break, dude, okay? So if you’re good with that, I’ll cut you a break?” Defendant replied, “Yup,” while nodding his head. Off. subjectively believed he had authority to tow, even though he did not.

Search turned up loaded gun under passenger seat. Defendant was charged with being a felon in possession of a firearm, being a felon in possession of ammunition, unlawfully carrying a loaded firearm, carrying a loaded firearm in a vehicle, and driving with a suspended license. Defendant filed a motion to suppress. Denied.

The Court of Appeal, per Robie, Acting PJ, reversed. People have the burden to show by a preponderance that a defendant’s consent is voluntary.

We hold that the false promise of leniency not to tow the car was a material and inextricable part of the agreement inducing defendant’s consent to the search, and thus, under the totality of the circumstances, defendant’s consent was not voluntarily given. As part of our analysis, we adopt the reasoning of the First Circuit Court of Appeals that the question of voluntary consent cannot be based on the subjective good faith of a police officer in making the false statement that induced the defendant’s consent to search.

Fleeing Officer’s Request Was Resisting/Delaying Arrest

  • In re T.F.-G., 94 CA5 893, CR3 685 (23) #H050112:

San Jose officers in unmarked car stopped near a group of five by a parked red Mustang. They smelled burning MJ and got out to question the people. They pat searched two, then approached Def., a juvenile. The convo went like this:

Off: “Can you come over here for a minute?”

Def.: “For what?”

Off: “Huh?”

Def.: “For what?”

Off: “Just come over here.”

Def.: “For what?”

Off: “Because I asked you to. Don’t make this—”

At which point, Def. took off running. He was tackled, punched, and arrested for resisting or delaying a peace officer (Pen. Code, § 148, subd. (a)). A loaded gun was found in his gym shorts pocket.

Suppression denial affirmed.

T.F.-G. argued that the police officers had not detained or attempted to detain him before he fled, and therefore he was not lawfully arrested pursuant to section 148, and the search of his basketball shorts was not incident to a valid arrest.

The court held that “a reasonable person in T.F.-G.’s position would have understood that the request to go to the officer was mandatory. By the time T.F.-G. fled, the officers were at least attempting to detain him. The officers therefore had probable cause to believe that T.F.-G. violated section 148.”

Sep 19 2023
Auto Searches, Probable Cause, Probation/Parole Searches, Search Warrants

P-C to Search Passenger Area of Car Did Not Extend to Trunk

  • LEAL, 93 CA5 1143, 311 CR3 540 (23) #C096463

Officers were surveilling a funeral because they expected a criminal street gang connected to prior shootings to be in attendance. An officer observed a juvenile walking and holding his pants up; he later observed a black handgun in his waistband. The juvenile got in Def’s car and lay down, then got out, appearing not to have the weapon. Off thought the juvenile had slipped the gun under the seat.

Defendant drove his car to a barbershop. Another officer detained him and said he was going to search his car. When he didn’t find a gun under the passenger seat, he decided to search the trunk. There he found a loaded Glock handgun.

Def moved to suppress. Denied. The Court of Appeal, per Robie, J., reverses.

A survey of cases applying the automobile exception reveals courts generally find warrantless searches of trunks and other enclosed compartments in a vehicle justified in three categories of circumstances: (1) officers have probable cause to believe contraband or evidence of a crime will be found specifically in the trunk or other enclosed compartment; (2) a search of the passenger compartment reveals contraband or other evidence generating further probable cause to search the trunk or other enclosed compartment; or (3) probable cause exists as to the entire car (i.e., that the contraband or evidence of a crime will be found somewhere in the car). The search of the trunk here does not fit within any of these categories.

Holding:

We hold that when an officer has probable cause to believe contraband or evidence of a crime will be found specifically in the passenger compartment of a vehicle (as compared to having probable cause to believe it will be found somewhere in the vehicle), and no other subsequent discovery or information provides further probable cause to believe the evidence will be found in the trunk, an officer’s search of the trunk exceeds the permissible scope of a warrantless search under the automobile exception.

Descriptions of Child Porn Were Adequate to Establish P-C

  • Wadleigh, 93 CA5 531, 310 CR3 948 (23) #A165017

Two search warrants issued re: child porn. In the affidavit, no images were attached, only four descriptions of the images. Def. moved to suppress, arguing that the warrants authorizing the two searches were invalid because their descriptions of four images in his electronic accounts lacked sufficient factual detail from which the magistrate could determine that (1) the subjects were minors and (2) the images depicted sexual conduct within the meaning of section 311.4, subdivision (d)(1).

1538.5 denial affirmed.

The court agreed with Wadleigh that the preferred course of action in such matters would be to attach actual images. However, there was enough info in the descriptions to establish P-C:

[W]e agree with Wadleigh that “a neutral and detached magistrate” (Illinois v. Gates, supra, 462 U.S. at p. 240), should in general view suspected images of child pornography and make the ultimate determination that the depicted individuals are minors. On the facts here, however, we conclude that the magistrate had a substantial basis to conclude the images depicted minors.

There was a Franks issue regarding the description of the first of the images. Under Franks v. Delaware 438 US 154 (78), the Supreme Court held that, where a “defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included . . . in [a] warrant affidavit,” and then proves the statement was reckless or intentional, “the affidavit’s false material [is] set to one side.” . . . If “the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded . . . .”

The court here concluded that, setting the first image to one side, the other descriptions established probable cause for the searches.

Auto Stop for Registration Was Unduly Prolonged

  • SUGGS, 93 CA5 1369, 311 CR3 739 (23) #C096555

Def’s car was stopped for having paper plates, and Off not seeing paperwork displayed in the window as required by law. On approach, the Off did see the paperwork attached to the darkly tinted window. He proceeded to question Def and passenger, ask for ID, and if there was anything “crazy” in the car. He also asked about probation status.

Off then asked for consent to search the car. Def declined. Off went back to his patrol vehicle then returned and informed Def and his passenger that they both had suspended licenses, the passenger was on probation for “possession of firearms stuff and a couple other things,” and he was going to conduct a probation search.

The search turned up a concealed firearm and ammunition in a satchel on the floor behind Def’s seat that was within the passenger’s reach. Based on that discovery, Off searched the entire vehicle and found a scale and a cigarette box holding 30 pills of a controlled substance in a compartment near the steering wheel.

Def’s motion to suppress was denied. The Court of Appeal, per Boulware Eurie, J., reverses.

We agree the detention became unlawful when (1) the purpose of the stop completely dissipated (when the officer saw the documents in the window and thus realized that defendant had not committed the Vehicle Code violation that was the purpose of the stop), and (2) the officer then made inquiries aimed at finding evidence of ordinary criminal wrongdoing.

GPS Tracker Placed on Car Was Permissible as Parole Search

  • Session, 93 CA5 723, 311 CR3 363 (23) #G060536

String of burglaries in Orange County. Offs stopped white BMW with Def driving. Off placed a GPS tracking device on the car before allowing it to leave. Car was later stopped after a chase. Phones and other items linked to burglaries were recovered.

Def moved to suppress, arguing that placing the GPS tracker was an impermissible warrantless search because the Off’s knowledge of his parole statues was “vague or uncorroborated.” Denied. Affirmed by the Court of Appeal, per Moore, J.

[W]hen a defendant is on parole, the source of the officer’s knowledge is not legally meaningful. Defendant, in support of the contention that the officer’s knowledge must come from an official source, relies primarily on a case involving a probationer, not a parolee. (People v. Romeo (2015) 240 Cal.App.4th 93)

Jul 21 2023
Blog

Dog Sniff Search After Traffic Stop Was Unlawfully Prolonged

  • GYORGY, ___ CA5 ___, ___ CR3 ___ (23) #G061567:

Anaheim police officer McGlade was cruising with dope sniffing dog, Titan. An undercover cop contacted him to be on the lookout for a black pickup that had acted “suspiciously” at a motel known for drug activity.

McGlade spotted the truck and followed. When the truck made a quick lane change, causing another car to brake, McGlade pulled the truck over for a VC violation. Gyorgy was driving.

McGlade asked several questions, eliciting that Gyorgy was a registered sex offender. He then ordered Gyorgy out and told him to sit on the curb as they waited for backup. Another officer arrived, then McGlade patted Gyorgy down. Nothing found.

Now seven and a half minutes into the stop, McGlade told Gyorgy he was going to have Titan sniff the car. Gyorgy protested. Titan began sniffing.

After nearly twelve minutes, Titan alerted to the bottom seam on the driver’s door. The officers searched the interior of the truck and found methamphetamine and a glass pipe with white residue indicative of having been used to smoke methamphetamine. Inside a backpack that was inside a cardboard box, they found an unloaded handgun, an empty magazine, and six live rounds of ammunition.

Gyorgy was charged with unlawful possession of drugs, paraphernalia, a firearm, and ammunition. His 1538.5 motion was denied.

The Court of Appeal, 2-1, reversed and remanded.

In RODRIGUEZ, 575 US 348 (15), the U.S. Supreme Court held that the “tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s mission—to address the traffic violation that warranted the stop…” and may last no longer than to effectuate that purpose.

Here, the court holds that “[e]xamining the totality of the circumstances, we conclude the police were not reasonably diligent in completing the traffic stop’s mission.”

Moore, Acting PJ, filed a dissent.

P-C for Search Warrant Seeking DNA Supported by “Investigative Genealogy”

  • Lepere, 91 CA5 727, 308 CR3 558 (23) #G061393:

In 2020, a cold case file was assigned to Anaheim Police Detective Julissa Trapp. The case was a 1980 rape-murder of a 79-year-old woman. A rape kit was booked into evidence.

In 2002, a forensic scientist was able to extract male DNA from the rape kit. There was no match in the databases.

Detective Trapp sought help from the FBI, which uploaded the unknown DNA profile to a company that was able to generate a single nucleotide polymorphism profile. This data was uploaded to an genealogy website, which the FBI used as an “investigative lead” identifying Def., now living in New Mexico, as “a person of interest.”

An officer in New Mexico completed an affidavit in support of a search warrant of Def’s home. Trapp and other officers executed the search in the early morning hours, seizing beer cans and other items from Def’s outside trash can. A couple of weeks later, Trapp received a crime lab report linking DNA collected from one of the beer cans to the DNA profile obtained from the 1980 Anaheim murder victim.

Def. was arrested and put on trial. His 1538.5 motion to suppress the DNA evidence was denied. The Court of Appeal, per Moore, Acting P.J., affirmed.

Here, the genealogical investigation by the Orange County Crime Lab and the FBI established a possible DNA connection between Lepere and the 1980 murder. Further, there was corroborating evidence that Lepere may have been near the victim’s apartment in Anaheim, California, at about the time of the 1980 murder. In short, we find there was “a fair probability . . . that a search” of Lepere’s outside trash can “would uncover” circumstantial DNA evidence linking Lepere to the commission of the 1980 Anaheim murder.   (See Kraft, supra, 23 Cal.4th at p. 1040.) Thus, we hold that the New Mexico magistrate had a reasonable basis for issuing the search warrant, and the trial court properly denied Lepere’s pretrial motion to suppress the DNA evidence.

The court went on to note that even if the S-W affidavit were not sufficiently detailed, the Good Faith Exception would preclude suppression. 

Geofence Warrant Was Not Overbroad

  • Price, ___ CA5 ___, ___ CR3 ___ (23) #E078954:

Last Poop Sheet we reported on Meza, 90 CA5 520 (23), involving a geofence warrant, used to access device location data gathered by large tech companies, like Google. While this data is typically “anonymized,” it can be “used in conjunction with other investigative techniques to tie devices to specific users—and identify persons of interest in a criminal investigation.” [Quoting Meza]

In Meza, the court found the warrant lacking in particularity and was therefore overbroad. But the search was saved by way of the Good Faith Exception.

Here,          Riverside County Sheriff’s Investigator Ryan Deanne was the lead investigator in the shooting death of one Jovany R. He was also the affiant for the geofence warrant.

Deanne testified about the investigation, the geofence warrant, and three other warrants seeking Price’s Google e-mail (Gmail) account data and cell phone records, issued after Price was identified as a suspect in the shooting based on location data and identifying information obtained from Google pursuant to the geofence warrant. Deanne also testified about his observations at the scene of the shooting, and his interviews with other investigating officers and witnesses, including Jovany R.’s brother, Samuel R., who was with Jovany R. at the time of the shooting and witnessed the shooting.

***

The geofence warrant sought “all identifying information” according to the Google “production protocol” for Google accounts reporting “location history data generated from devices that reported a location” within the geofence. As Deanne testified, the warrant limited the geofence to the front yard of Jovany R.’s home, where the shooting occurred, and the street in front of the home (Homestead) for the length of two houses in each direction, where Samuel R. saw the two suspects flee in separate directions after the shooting. The street portion of the geofence on Homestead abutted the yards of 11 homes, including Jovany R.’s front yard. The warrant requested location data in the geofence between 10:00 p.m. and 10:22 p.m. on October 29, 2019, a 22-minute period encompassing the time of the shooting, according to 911 calls and the times officers responded to the scene of the shooting. The warrant included an aerial photograph of the geofence marked by latitude and longitude coordinates, and areas immediately around the geofence.

***

Here, the geofence warrant was a model of particularity in geographic scope and time period.

Additionally, as in Meza, the court found the Good Faith Exception would also apply.

May 17 2023
Search Warrants

Geofence Search Warrants

  • Meza, 90 CA5 520, 307 CR 235 (23) #B318310:

What the heck is a “geofence”? Well, it’s a virtual fence around a physical location. Geofencing is a type of location-based targeting. For example, a user can set it up so when he and his enter a defined geographical boundary, the user gets an alert. A student might walk near a computer store, and then get a text message that says, “Today only! Buy a laptop and get an e-reader free!”

If that’s your idea of a good time, have at it, but, as Samuel Goldwyn used to say, include me out.

Anyway, law enforcement can request a “geofence warrant” to access device location data gathered by large tech companies, like Google. While this data is typically anonymized (there’s another word for you), it can be “used in conjunction with other investigative techniques to tie devices to specific users—and identify persons of interest in a criminal investigation.” [Quoting Meza]

In this case, Daniel Meza and Walter Meneses were identified as suspects in the murder of Adbadalla Thabet after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as Thabet on the day of his murder. After their motions to quash and suppress evidence were denied, Meza pleaded guilty to first degree murder; and Meneses pleaded no contest to second degree murder.

On appeal, Def’s contended the trial court erred in denying their motion to suppress, arguing the geofence warrant violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and did not comply with the California Electronic Communications Privacy Act (CalECPA) of 2016 (Pen. Code, § 1546 et seq.) The court holds that the geofence warrant satisfied the requirements of CalECPA, but lacked the particularity required by the Fourth Amendment and was impermissibly overbroad. However, suppression denial is affirmed under the Good Faith Exception.

Given the dearth of authority directly on point and the novelty of the particular surveillance technique at issue, the officers were not objectively unreasonable in believing the warrant was valid, even if the issue, upon close legal examination, is not a particularly close one.

California Supreme Court

When is a Prosecutor Entitled to a 1538.5 Continuance?

Continuances in criminal cases are covered by PC 1050:

“Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause.” (§ 1050, subd. (e).) Convenience of witnesses is, however, a factor for the court to consider both in deciding whether good cause has been shown and in selecting the new date. (§ 1050, subd. (g)(1).) If the court concludes that a continuance is necessary, it must state on the record the facts justifying that finding. (§ 1050, subd. (f).) Any permitted continuance must be limited to “only . . . that period of time shown to be necessary by the evidence considered at the hearing on the motion.” (§ 1050, subd. (i).)

Section 1050 provides for two different good cause showings. If the moving party has not complied with the procedures of subdivision (b), it must show that there is good cause to excuse that failure. If such a showing is not made the court may impose sanctions. As to the merits of a continuance motion, subdivision (e) requires a good cause showing that a continuance is necessary.

Trial courts enjoy broad discretion to deny continuances unsupported by a showing of good cause. However, established case law holds that it is an abuse of discretion to deny a trial continuance, solely because good cause is lacking, when doing so will result in dismissal of the charges and the continuance can be granted without violating the defendant’s speedy trial rights. (See People v. Ferguson (1990) 218 Cal.App.3d 1173.

Re: a 1538.5 motion, if the challenged evidence is so critical that its suppression would require dismissal of the case, the court must generally grant a continuance unless dismissal would be in furtherance of justice. The burden is on the prosecution to show an inability to go forward without the evidence in dispute. The court, however, must ultimately determine whether dismissal of the case is reasonably probable absent a continuance.

It is an abuse of discretion for a court to deny a continuance within the speedy trial period, absent countervailing factors warranting dismissal.

In Brown, 4 C5 530, 306 CR3 25, 525 P3 1036 (23) #S271877, the California Supreme Court reverses the Court of Appeal, and holds that it was an abuse of discretion to deny a continuance. And:

In determining whether the denial of a continuance will make it reasonably foreseeable that a case will be dismissed, the court must consider the totality of the extant circumstances. One of the factors to be considered is the People’s representation that they will be unable to proceed without the challenged evidence. But the court must independently examine that representation. In the end it is the court’s determination, not the People’s representation, that is dispositive. The reasonable foreseeability standard comes into play when the case cannot be tried absent the evidence, not when the case will simply be more difficult to prove.

Additionally:

This is not to say that the court’s hands are tied when the prosecution seeks a continuance without satisfying section 1050’s requirements. It may impose fines, refer the prosecutor for discipline, and impose any other sanctions at its disposal short of dismissal for procedural noncompliance. (§ 1050.5, subd. (b); see § 1050, subd. (b).) “And, of course, the trial court may exercise its discretion in selecting the length of a continuance; it need not necessarily accede to the prosecutor’s preferred date.” (Ferrer, supra, 184 Cal.App.4th at p. 886.)

← Older posts