Bell's Compendium

• LANGE, 594 US ___, 141 SC 2011, ___ LE2 ___ (21) #20-18:

Lange drove by a California highway patrol officer while playing loud music and honking his horn. The officer began to follow Lange and soon after turned on his overhead lights to signal that Lange should pull over. Rather than stopping, Lange drove a short distance to his driveway and entered his attached garage. The officer followed Lange into the garage. He questioned Lange and, after observing signs of intoxication, put him through field sobriety tests. A later blood test showed that Lange’s blood-alcohol content was three times the legal limit.

The State charged Lange with DUI. Lange moved to suppress the evidence obtained after the officer entered his garage, arguing that the warrantless entry violated the Fourth Amendment. The Superior Court denied Lange’s motion, and its appellate division affirmed. The California Court of Appeal also affirmed. It concluded that Lange’s failure to pull over when the officer flashed his lights created probable cause to arrest Lange for the misdemeanor of failing to comply with a police signal. And it stated that Lange could not defeat an arrest begun in a public place by retreating into his home. The pursuit of a suspected misdemeanant, the court held, is always permissible under the exigent-circumstances exception to the warrant requirement. The California Supreme Court denied review.

The Supreme Court, per Kagan, J., holds that under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always—that is, categorically—justify a warrantless entry into a home.

It’s a messy decision.

The Court’s Fourth Amendment precedents thus point toward assessing case by case the exigencies arising from misdemeanants’ flight. When the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—the police may act without waiting. Those circumstances include the flight itself. But pursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless home entry.

Hello, what? The flight itself is included in the “totality of circumstances,” but there have to be other considerations; and these have to be weighed on the spot as the suspect is fleeing.

See what you can make of this, from Justice Kagan’s opinion:

When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances, as described just above, include the flight itself. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency.

***

On many occasions, the officer will have good reason to enter — to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so — even though the misdemeanant fled.

Um…okay. In Roberts’ “concurrence” (that reads like a dissent) he calls this approach “hopelessly indeterminate.”

Illegal Detention, But Taint Attenuated by Discovery of Arrest Warrant Before Search

• Kasrawi, 65 CA5 751, ___ CR3 ___ (21) #D077139:

At 4:00 a.m. a San Diego police officer, Pardue, was driving his regular patrol route in Del Mar when he saw Kasrawi cross a residential street and start to enter his Toyota Prius. Because Pardue rarely saw people during his nighttime patrol, knew of two car burglaries in the area in the past week, and did not recognize the Prius, he flipped on his spotlight and pulled up behind and to the side of the Prius, “flooding Kasrawi with a bright light.”

Pardue asked Kasrawi where he was coming from. Kasrawi said he was resting on a drive down from Los Angeles. Pardue didn’t buy it. He had a hunch Kasrawi was “casing vehicles.” He put cuffs on Kasrawi, and subsequently found out Kasrawi had an outstanding arrest warrant.

A subsequent search incident to arrest yielded stolen items from nearby cars in Kasrawi’s pockets and his Prius, from fistfuls of loose change to gift cards and purses. Kasrawi also attempted to discard a bindle of methamphetamine, but an officer who arrived to help Pardue noticed when Kasrawi dropped the small package. Kasrawi was charged with six counts related to these car burglaries, the stolen items, and possession of methamphetamine.

Kasrawi’s motion to suppress was denied. The Court of Appeal, per Dato, J., affirmed.

First, as to the detention, the court found (in a 2-1 split) that the detention was unlawful:

A reasonable person would not feel free to terminate such an encounter with law enforcement. Furthermore, the detention was unlawful because the factors known to Pardue at that point gave rise to no more than a mere hunch that Kasrawi might be involved in criminal activity.

On this point, the dissent by Benke, J., disagrees:

The majority acknowledges the spotlight alone might not have been enough to constitute a detention but asserts the “ ‘manner or mode’ ” of Pardue’s approach removed any ambiguity as to Kasrawi’s ability to leave. I disagree. As an initial matter, Pardue stopping his patrol car behind Kasrawi’s vehicle was not materially different than the actions of the officers in Perez and Tacardon, and, if anything, it was less aggressive.

Nevertheless, the taint of the unlawful detention was attenuated by the discovery of the outstanding warrant. From the majority opinion:

An illegal detention that uncovers evidence is generally subject to the exclusionary rule, which dictates the unlawfully obtained evidence be suppressed as “fruit of the poisonous tree.” (Wong Sun v. United States (1963) 371 U.S. 471, 488; People v. Krohn (2007) 149 Cal.App.4th 1294, 1299.) Kasrawi assumes that if we agree with him about the timing of his detention, then we would agree that his motion to suppress should have been granted in the trial court. But exceptions to the exclusionary rule apply “when the costs of exclusion outweigh its deterrent benefits.” (Strieff, supra, 136 S.Ct. at p. 2059.) One such exception is the intervening discovery of “a valid, pre-existing, and untainted arrest warrant.” (Id. at p. 2061.) When this kind of discovery is made, and there are no countervailing concerns about flagrant police misconduct, “the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression.” (Id. at p. 2059.) That was the case here, because Pardue’s quick discovery of Kasrawi’s outstanding warrant preceded the search incident to his arrest and cured the taint of the unlawful detention.

• CANIGLIA, ___ US ___, ___ SC ___, ___ LE2 ___ (21) #20–157:

With rare unanimity on the 4th Amendment, the Court holds there is no “community caretaking” exception to the warrant requirement when entering a home. There may be in an auto situation [Cady, 413 US 433 (73)], but homes are due higher protection.

During an argument with his wife, Caniglia put a handgun on the dining room table and asked his wife to “shoot [him] and get it over with.” His wife left and spent the night at a hotel. Next morning she was unable to reach her husband by phone, so she called police to request that they check on him. The officers accompanied the wife to the home, and saw Caniglia on the porch. The officers called an ambulance based on the belief that Caniglia posed a risk to himself or others. Caniglia agreed to go to the hospital for a psychiatric evaluation on the condition the officers not confiscate his firearms. But once Caniglia left, the officers went in and seized his weapons. Caniglia sued, claiming that the officers had entered his home and seized him and his firearms without a warrant in violation of the Fourth Amendment. The District Court granted summary judgment to the officers. The First Circuit affirmed.

A unanimous Supreme Court, per Thomas, J., vacated and remanded.

What is reasonable for vehicles is different from what is reasonable for homes. Cady acknowledged as much, and this Court has repeatedly “declined to expand the scope of . . . exceptions to the warrant requirement to permit warrantless entry into the home.”

Roberts, CJ, with Breyer, J., filed a concurring opinion to stress that the exigent circumstance exception to help the injured or potential victims is not changed by this opinion.

Physical Force With Intent to Restrain, Even if Suspect is not Subdued, is a Seizure

• TORRES, 592 US ___, ___ SC ___, ___ LE2 ___ (21) #19–292:

Officers with the New Mexico State Police arrived at an Albuquerque apartment complex to execute an arrest warrant. They approached Roxanne Torres, who was standing near a Toyota FJ Cruiser. The officers attempted to speak with her as she got into the driver’s seat. Believing the officers to be carjackers, Torres hit the gas to escape. The officers fired their service pistols 13 times to stop Torres, striking her twice. Torres managed to escape and drove to a hospital 75 miles away, only to be airlifted back to a hospital in Albuquerque, where the police arrested her the next day.

Torres later sought damages from the officers under 42 U. S. C. §1983. She claimed that the officers used excessive force against her and that the shooting constituted an unreasonable seizure under the Fourth Amendment. Affirming the District Court’s grant of summary judgment to the officers, the Tenth Circuit held that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.”

The United States Supreme Court, per Roberts, CJ, vacated and remanded, holding that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Breyer, Sotomayor, Kagan, and Kavanaugh joined.

The rule we announce today is narrow. In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force. That is to say that the Fourth Amendment does not recognize any “continuing arrest during the period of fugitivity.” Hodari D., 499 U. S., at 625. The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover, and what evidence a criminal defendant may exclude from trial….But brief seizures are seizures all the same.

Applying these principles to the facts viewed in the light most favorable to Torres, the officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away. We therefore conclude that the officers seized Torres for the instant that the bullets struck her.

Exigency Ends When Emergency Ends

• NUNES, __ CA5 ___, ___ CR3 ___ (21) #H046395:

A captain in the Milpitas Fire Department responded to defendant’s house based on a report of a “whole structure fire,” with fire coming from the house. But when he arrived, he saw no fire and no smoke. Neighbors told him they had recently seen a plume of smoke coming from the backyard.

The captain entered the backyard. He found no evidence of active fire, just the “odor of smoke.” He noticed a closed shed. No smoke was coming from it, nor did the smell of smoke seem to originate from there. He opened the shed as part of his fire investigation because he wanted “to make sure everything is clear.”

Inside the shed was a metal cabinet. In his testimony, the captain admitted there was nothing specific about the cabinet that made him think he should look inside. Still, he opened is and saw bottled chemicals he was not familiar with. He called for the hazardous materials team and the police.

The police ultimately obtained a search warrant, based in part on the chemicals found in the cabinet. Def. was charged with possessing explosives and explosive materials. He moved to suppress, the court denied, and this appeal followed.

The Court of Appeal, per Grover, J., reversed. It stressed the heightened protection under the 4th Amendment offers to the home and its recognized extensions, such as a garage or shed.

Key to our decision is the principle that the justification for searching based on exigent circumstances “ends when the emergency passes.” (People v. Duncan (1986) 42 Cal.3d 91, 99.) And here, the emergency which may have existed when fire personnel arrived on scene was no longer apparent when the fire captain opened the cabinet inside the shed.

***

We are not persuaded that opening the cabinet in the shed was necessary to avoid imminent danger to life or serious property damage, given that the urgency of the situation had dissipated. Indeed, the fire captain’s testimony was that nothing “in particular” about the cabinet led him to open it. The exigent circumstances exception therefore does not extend to the cabinet search. Application of the exception requires both a specific articulation of an emergency threatening life or destruction of property, and an explanation of why the action in question was immediately necessary to address the specified emergency. With regard to the cabinet search, we see neither in this record.

Elia, J., dissented.

Entry into the cabinet was justified….The source of the smoke smell was still unknown after entry into the shed and the fire captain’s concerns about the possible presence of explosive material had not been allayed.

• Flores, 60 CA5 978, ___ CR3 ___ (21) #B305359:

At 10:00 p.m. at night, on a cul-de-sac known for illegal drug and gang activity, police see Flores on the street who, when he sees them, goes around and ducks behind a car. Flores looks up, ducks behind the car again, looks up again, and then ducks down again. An officer with a bright flashlight approaches to see what is going on. Flores remains crouched, moving his hands. The officer will later testify that he believed Flores was “pretending to tie his shoe.”

Despite the approaching light and the noise of the police radio, Flores stays ducked down for 20 seconds. The officer testifies he suspected Flores was “there loitering for the use or sales of narcotics.”

The police asked Flores if this was his car. Flores said yes. They asked for identification. Flores directed the police to his wallet, which was inside the car in the driver’s side door. Flores gave his consent for the police to get his wallet. In the wallet police found a bindle of what looked like methamphetamine. Police then searched Flores’s car and found a loaded and unlicensed gun inside a backpack on the front passenger seat

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

The rule: The Fourth Amendment permits police to initiate a brief investigative stop when they have a particularized and objective basis for suspecting the person of criminal activity. It can’t be a mere hunch. Terry v. Ohio, 392 US 1 (68).

The trial court found Flores’s actions “odd.” The defense asked an obvious question: how do you know if a person is only pretending to tie his shoe? The majority opinion, per Wiley, J., answers:

[Y]ou would have valid suspicions if the person picked an unlikely moment for the task—in the dark, just after seeing police, and just after ducking once already—and if the person took an unusually long time at it. The trial court found Flores kept crouching for a suspiciously long time. Common sense takes context into account.

In dissent, Stratton, J., says:

The majority concludes that ducking, freezing, and not rising fast enough under these circumstances gave those officers reasonable suspicion to conduct a Terry stop. I cannot abide this holding as it threatens to allow police detention based on commonplace conduct subject to interpretation. The majority’s overbroad view of what sort of conduct can be deemed suggestive of wrongdoing ignores applicable law and the realities of twenty-first century America. In the case of a person wary of police interaction, the majority’s approach leaves virtually no room for that person’s conduct to be deemed “normal” and hence not suspicious.

Search of Parked Vehicle With Intoxicated Driver Valid

• Sims, 59 CA5 943, 273 CR3 792 (21) #D077024:

Shortly before 3:00 a.m., two police officers entered a parking lot in downtown San Diego. The officers were patrolling the area because the bars in downtown San Diego closed at 2:00 a.m., exiting patrons were often involved in criminal offenses, and the parking lot was known as a place where people went to drink and loiter after they left the bars. According to one of the officers, there were people congregating and partying in the parking lot, many of whom “scattered” when the officers arrived.

The officers approached a parked vehicle in the parking lot. Defendant was seated in the front passenger seat and appeared to be passed out. The keys to the vehicle were in the ignition. The officers engaged the defendant in conversation and detected the odor of alcohol on his breath. Bloodshot eyes, slurred his speech, etc. Based on these observations, the officers immediately believed the defendant was intoxicated and in violation of section 85.10 of the San Diego Municipal Code.

At the officers’ request, the defendant provided his name. One officer used his cell phone to search the defendant’s name on a criminal records database. The search yielded a record for a person named Tony Sims. The person was on probation and, as a condition of probation, he had executed a Fourth Amendment waiver. The database record included the person’s birthdate, height, and weight, as well as a photograph of the person that was approximately one square inch in size when displayed on the officer’s cell phone.

The officer asked the defendant to exit the vehicle for a vehicle search. However, the defendant was paralyzed from the waist down. Because the defendant was unable to exit the vehicle without assistance, the officer began to search the vehicle while the defendant remained seated in the front passenger seat. During the ensuing search, the officer recovered a loaded semi-automatic handgun from the rear passenger floorboard. The defendant was then handcuffed and removed from the vehicle, after which the officer continued to search the vehicle. The officer seized a second loaded semi-automatic handgun from underneath the front passenger seat and handgun ammunition from the rear driver side floorboard.

But then, oops: The police later determined the defendant was not the person whose record was produced during the criminal records database search and he had not executed a Fourth Amendment waiver.

The defendant moved to suppress. Denied. The Court of Appeal, per McConnell, P. J., affirmed. (Case was remanded for re-sentencing.)

There were two rationales supporting the search.

1. Automobile Exception

Under the automobile exception, police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.

Here, police had probable cause to believe the car could contain evidence of violation of San Diego Municipal Code section 85.10: “No person who is under the influence of intoxicating liquor or narcotic drugs shall be in or about any motor vehicle, while such vehicle is in or upon any street or other public place.”

What evidence? Perhaps an open container. The defendant argued that the officers lacked probable cause to search his vehicle because his state of intoxication, standing alone, did not give rise to a reasonable inference that he consumed alcohol in the vehicle (as opposed to a bar), or that unsealed containers of alcohol would be found in the vehicle.

Assuming without deciding that “something more” than the defendant’s state of intoxication was necessary for the officers to have probable cause for the search, there was “something more” here. The encounter between the officers and the defendant occurred shortly before 3:00 a.m., after nearby bars had closed.

2. Search Incident to Arrest

Under Gant, 556 US 332 (09), police may conduct a warrantless search of the passenger compartment of a vehicle and any containers therein, as an incident to a lawful arrest of a recent occupant of the vehicle, so long as “the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

At the time the officers began to search the vehicle—and discovered the first loaded firearm—the defendant was unsecured and seated in the front passenger seat of the vehicle. The defendant was plainly “within reaching distance of the passenger compartment” while he was unrestrained and seated inside the passenger compartment.

• EDGERRIN J., 57 CA5 752, 271 CR3 610 (20) #D07646:

Defendant and co-defendant, Jamar D., appealed the denial of their motion to suppress. The Court of Appeal, per Dato, J., reverses and remands.

Facts:

After receiving a citizen’s tip that Black males in a Mercedes were “acting shady,” four San Diego Police Department (SDPD) officers drove to the scene in two marked vehicles, activating emergency lights in one. Parking behind the Mercedes, the officers positioned themselves beside each of its four doors and asked the three teenagers inside for their names and identification. A records check later indicated that the driver was on probation subject to a Fourth Amendment waiver. The officers searched the vehicle and recovered a loaded firearm and sneakers linking the minors to a recent robbery.

Issues:

1. Was this a consensual encounter or a detention?
2. If it was a detention, was it justified?
3. If it was not justified, were there “other facts” that could make it so?

The Court held that this encounter was a detention:

Though there is no bright-line rule that activating lights always constitutes a detention, the “Supreme Court has long recognized that activating sirens or flashing lights can amount to a show of authority.” (Brown, 61 Cal.4th at pp. 978, 980.)

Even if a stop did not occur with the officers’ arrival on the scene, it plainly occurred immediately thereafter when four officers stepped out of their vehicles after parking and walked to each door of the sedan for the admitted purpose of preventing its occupants from leaving. The minors were directed to roll down their windows, hand over proof of identification, and provide their names, addresses, and birthdays. When Edgerrin asked if he could call his father, Officer Williams ordered him, “Stay off this phone. I don’t want you to do any of that kind of stuff, okay?”

The court held that the detention was not justified by the “vague citizen’s tip.” The court remanded for further findings to determine whether the officers had enough additional information to constitute reasonable suspicion.

The court added this:

We pause here to clarify that, confronted with a tip that was insufficient to create reasonable suspicion, officers were nonetheless entitled to investigate further. As the juvenile court stated, they had a right to drive to the location after receiving the tip. Once there, they could have made additional observations before approaching or attempted a consensual encounter by asking if the minors were willing to answer a few questions. What they could not do, without more, was immediately detain the minors.

 

Search of Defendant’s Car Upheld Based on Passenger’s Probation Status

• Maxwell, 58 CA5 546, ___ CR3 ___ (20) #C080890:

Two different searches at issue in this one.

Officers received an anonymous tip about the location of one Christy Scarbrough, who at the time had four outstanding arrest warrants and was on searchable probation. They drove to that location and spotted Scarbrough in the passenger seat of a car. After Scarbrough exited the car, one officer arrested her and another spoke briefly to the car’s driver, the Defendant.

Def. several signs of being a drug user. Based on Scarbrough’s searchable probation status, the officer ordered defendant out of his car and searched the car. During the search, the officer found multiple used hypodermic needles under the driver’s seat, a spoon with soot on its underside and brown residue on its inside, a digital scale, multiple cell phones, and several pieces of what the officer believed was black tar heroin. Arrest, search of Def. and car. The officer later searched the motel where Scarbrough and Def. were staying and found multiple used and unused hypodermic needles and 25.9 grams of black tar heroin. Def. was charged with possessing heroin with the intent to sell and with possessing drug paraphernalia.

Several months later Def. was let out of jail on bail with a 4th Amendment waiver search condition. An officer relied on these conditions to search Def’s person, car, and home. At Def’s home, the officer found 44 methadone pills packed in four separate plastic bags. Def. was charged with possessing methadone with the intent to sell.

These charges were consolidated. Def. filed two motions to suppress. Both denied. The Court of Appeal per Blease, J., affirmed.

As to the first search, of the car, and citing Schmitz 55 C4 909 (2012) [officer may search those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity], the court held the same rationale applies to a probationer (here) as to a parolee (Schmitz).

As to the second set of searches, a little wrinkle: shortly after they were effectuated this court, in a previous consideration of the bail terms, held that they were improperly imposed. As the saying goes, timing is everything. These searched are upheld under the Good Faith Exception.

Lawful Possession of MJ in Car is No P-C to Search

• HALL, 57 CA5 946, 271 CR2 793 (20) #A157868:

Def. was pulled over for a vehicle-equipment violation in 2018, a police officer observed in the car “a clear plastic baggie” of what appeared to be marijuana. Based on this observation, two police officers searched Hall’s car and found a gun in a closed backpack, resulting in criminal charges against Hall. The trial court denied Hall’s motion to suppress the evidence found in this search.

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

Since the passage of Proposition 64 by voters in 2016, however, it has been legal for persons 21 years of age and older to possess and transport small amounts (up to 28.5 grams) of marijuana. (Health & Saf. Code, § 11362.1, subd. (a)(1).) We now join those courts that have held the lawful possession of marijuana in a vehicle does not provide probable cause to search the vehicle. (See People v. Lee (2019) 40 Cal.App.5th 853, 865–867; People v. Shumake (2019) 45 Cal.App.5th Supp. 1, 6; People v. Johnson (2020) 50 Cal.App.5th 620, 634; People v. McGee (2020) 53 Cal.App.5th 796, 801–802.)

• Wilson, ___ CA5 ___, ___ CR3 ___ (20) #D074992

Def. sent child porn via attachments in Gmail, which is owned by Google. Google has an automated system that flags potential child porn. The system then generates a report, complete with copies of the images, and sends it to the National Center for Missing and Exploited Children (NCMEC). This is called a “Cybertip.” Determining that the internet address in the email came out of San Diego, the NCMEC forwarded the report to the San Diego Internet Crimes Against Children (ICAC) task force.

Using the information contained in the report, and based on his review of the images, an ICAC investigator obtained a search warrant to obtain from Google all content and user information associated with the Gmail address. This resulted in the discovery of Def’s e-mails offering to pay a minor to molest and exploit children and the distribution of child pornography to others. Another warrant issued for Def’s apartment and vehicle, resulting in finding a thumb drive with thousands of child porn images.

Def. moved under 1538.5 to suppress the search of the original images, and all subsequent evidence. Denied. The Court of Appeal, per Guerrero, J., affirmed.

The court held that Google’s automated search was private, not done in concert with law enforcement. It also held, per Jacobsen, 466 US 109 (84) that the subsequent viewing of the evidence did not expand on the original private search.

In sum, the government’s warrantless search of Wilson’s four images was permissible under the private search doctrine. Google’s private search frustrated Wilson’s expectation of privacy in the files before they were viewed by the government. Google had already identified Wilson’s files as having matching hash values to images that had previously been viewed and identified by a Google employee as apparent child pornography. The government’s subsequent opening and viewing of the four photographs did not significantly expand on the search that had previously been conducted by Google. The agent’s actions in opening the files and viewing the images merely confirmed that the flagged files were child pornography, as reflected in Google’s Cybertip report.

Warrantless Cell Phone Ping Justified Under “Exigent Circumstances”

• Bowen, 52 CA5 130, 265 CR3 824 (20) #A155630

Def had a dispute with Dennis N. over the car of Def’s dog, Dash. Dennis said Def owed him $2,000. Def said Dennis was doing it “pro bono.” A series of texts ensued.

Eventually, Def went to Dennis’s mobile home. Things got ugly—Def and Dennis gave conflicting accounts—but Def stabbed Dennis several times in the neck with a three-inch pocket knife. Dennis ran toward a nearby preschool, screaming for help. Def fled the scene.

The police arrived. Dennis gave them Def’s cell number. And officer called police dispatch, asked them to contact defendant’s mobile phone service provider to determine the defendant’s possible location. This was done, officers went to the location and found Def walking on the trail wearing a backpack, a jacket, and no shirt. He was arrested; his cell phone, backpack, and several knives were seized. Def had blood on his right ear, and DNA tests confirmed the blood was consistent with both defendant’s and Dennis N.’s.

Def filed a motion to suppress the evidence seized from his backpack on the grounds that the police failed to obtain a warrant before having defendant’s service provider ping his cell phone to locate him. The People argued the warrantless cell phone ping was justified by exigent circumstances.

Suppression denied. The Court of Appeal, per Jackson, J., affirmed. This was a situation where the hot pursuit of a dangerous suspect created an emergency under the exigent circumstances exception to the warrant requirement.

Here, at the time Officer Adams requested a ping of defendant’s cell phone, the information available to him was that less than an hour earlier Dennis N. had been repeatedly stabbed in the neck in an unprovoked attack, within 200 yards of a preschool and near a shopping center and multiple neighborhoods. Further, the suspect, who was possibly still armed with a knife, had fled on foot. The area where the witnesses indicated the defendant had headed was a several-hundred-yard field with multiple entrances and exits leading to a creek trail, houses and apartment complexes, and a store; and there are “hundreds of people moving about” the area. The police were actively looking for defendant when they received the CSLI [cell-site location information]. Based upon the circumstances known to Officer Adams, he believed it was imperative that the suspect be found as soon as possible to prevent another possible unprovoked attack. We agree with the trial court’s determination that the exigent circumstances exception applies under the facts of this case, and defendant’s motion to suppress was properly denied.

Justice Amy Coney Barrett and the Fourth Amendment

How will the newest Justice of the Supreme Court rule when it comes to the Fourth Amendment? Of course, no one can know for certain what cases and facts will come before the Court. But two Seventh Circuit decisions authored by Justice Barrett may hold a clue.

In U.S. v. Terry, 915 F3 1141 (19), then-Judge Barrett wrote the following as the lead to her opinion:

Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect’s residence? We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that’s about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property.

What’s nice about that paragraph is how clean it is. It clearly elucidates the facts, the issue, and the law.

The other opinion of note is United States v. Watson, 900 F3 892 (18). Judge Barrett’s opening was, again, clear:

The police received an anonymous 911 call from a 14‐year‐old who borrowed a stranger’s phone and reported seeing “boys” “playing with guns” by a “gray and greenish Charger” in a nearby parking lot. A police officer then drove to the lot and blocked a car matching the caller’s description. The police found that a passenger in the car, David Watson, had a gun. He later conditionally pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), but preserved for appeal his argument that the court should have suppressed the gun because the stop lacked reasonable suspicion.

We agree with Watson that the police did not have reasonable suspicion to block the car. The anonymous tip did not justify an immediate stop because the caller’s report was not sufficiently reliable. The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful.

• 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.)

***

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.

• Glover, 589 US ___, 140 SC 1183, ___ LE2 ___ (20) #18–556:

A Kansas deputy sheriff ran a license plate check on a pickup truck, discovering that the truck belonged to respondent Glover and that Glover’s driver’s license had been revoked. The deputy pulled the truck over because he assumed that Glover was driving. Glover was in fact driving and was charged with driving as a habitual violator.

He moved to suppress all evidence from the stop, claiming that the deputy lacked reasonable suspicion. The District Court granted the motion, but the Court of Appeals reversed. The Kansas Supreme Court in turn reversed, holding that the deputy violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal activity.

In what they call a “narrow” holding, the U.S. Supreme Court holds that the stop was valid. The law is as follows:

• The Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he has a particularized and objective basis for suspecting the particular person stopped of criminal activity.
• The level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence, and less than is necessary for probable cause.
• Officers are permitted to make commonsense judgments and inferences about human behavior.

Applying that, the majority opinion by Thomas, J., holds:

Before initiating the stop, Deputy Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ. He also knew that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle. From these three facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.

Ah, but what about an observation that tends to negate the above “reasonable suspicion”? The Court addresses that:

[T[he presence of additional facts might dispel reasonable suspicion … For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not “raise a suspicion that the particular individual being stopped is engaged in wrongdoing.” … Here, Deputy Mehrer possessed no exculpatory information—let alone sufficient information to rebut the reasonable inference that Glover was driving his own truck—and thus the stop was justified. (Citations omitted)

The lone dissenter was Sotomayor, J. who argued that this approach flips the burden of proof. The majority addressed this in a footnote:

The dissent argues that this approach impermissibly places the burden of proof on the individual to negate the inference of reasonable suspicion. Not so. As the above analysis makes clear, it is the information possessed by the officer at the time of the stop, not any information offered by the individual after the fact, that can negate the inference. (Emphasis in original)

DUI Arrestee Did Not Object to or Resist Blood Draw. Therefore, Consent

• Lopez, 46 CA5 317, 260 CR3 18 (20) #C080065:

Police detained defendant after observing her driving. An Officer Adams observed defendant’s unsteady gait, constricted pupils, and slurred speech. He conducted field sobriety tests that indicated she was impaired. He had her blow into a preliminary alcohol screening (PAS) device which registered .000, indicating an absence of alcohol. He believed she was under the influence of controlled substances, as opposed to alcohol. He arrested her and transported her to the county jail.

Adams sought a blood sample from defendant. At trial, he explained his procedure for obtaining a blood sample from DUI suspects as follows: “So what we’ll normally do is I’ll advise them that they’re required to, by law, to give a blood sample. We will transport them to the Placer County Jail, a phlebotomist will respond and take the blood sample, which I will witness. I will then take possession of the blood and book it into evidence.”

Adams stated he told defendant that “since she was under arrest for a DUI, and since I believed it was a controlled substance DUI, she’s required, by law, to submit to a blood test.” The officer said defendant did not refuse the blood test: “She consented and cooperated.” She did not object or resist at any point. If she had refused, he would have obtained a warrant and performed a forced blood draw.

Defendant’s motion to suppress was denied. The Court of Appeal, per Hull, Act. P. J., affirmed.

Defendant claimed there was insufficient evidence of voluntary consent, as Officer Adams did not provide the admonitions required by the implied consent law. Thus, any consent was merely her submission to a claim of lawful authority and any consent was coerced.

The question is one of “totality of the circumstances” to see if an arrestee’s actions imply actual consent. Here, they did:

Officer Adams correctly instructed defendant that she was required to undergo a blood test. Defendant did not object or refuse to undergo the test. She did not resist any of the officers’ directions or actions. She voluntarily placed her arm on the table to allow the phlebotomist to draw her blood.

A second argument from the defendant contended that her consent could not be voluntary because she submitted to Officer Adams’ misrepresentation of a lawful claim of authority. The officer told defendant she was required to give a blood sample. Defendant claims this statement was an order under authority of law, and it was a misstatement because case law requires either voluntary consent or a warrant.

The court did not buy it:

Officer Adams’s omission of the admonitions was one factor for the trial court to consider when it reviewed the totality of the circumstances. The omission did not deny defendant her right to withdraw her implied consent and compel her to consent. The court reviewed all of the circumstances and evidence, including Officer Adams’s omission, and it concluded defendant had actually consented to the blood draw. Substantial evidence supports its finding of fact.

• MENDOZA, 44 CA5 1044, 258 CR3 249 (20) #E071835

A jury convicted Def. of transporting for sale more than four kilograms of cocaine based on evidence a U.S. Customs and Border Protection agent acquired after a stop on Interstate 15. Def. sought to exclude the evidence, arguing the agent did not have reasonable suspicion she was engaged in criminal activity when he stopped her.

The agent said he decided to stop Def. because she was driving in a known smuggling corridor in a vehicle which had crossed the United States-Mexico border in the prior week; she slowed and changed lanes after he pulled alongside her in an unmarked car, rolled down his window, and stared at her; she drove at approximately 50 miles per hour to stay behind him; and she then refused to look at him when she ultimately passed him a few minutes later. The trial court held—albeit with reservations—that the stop was justified, and a jury later convicted her of transporting narcotics for sale. Mendoza appeals her conviction based only on the impropriety of the stop.

The trial court denied suppression. The Court of Appeal, per Slough, Act. P. J., reverses.

Clearly, driving on I-15 out of Mexico is not any ground for a stop. It was the other factors the agent relied on. But here the key fact was the agent was in an unmarked car.

The agent said he also considered the fact that Mendoza slowed and moved over behind him after he pulled alongside to inspect her vehicle. However, the manner of his approach is critical to evaluating Mendoza’s reaction. He acknowledged he drove an unmarked vehicle with no signs of its relation to law enforcement. As a result, when he pulled alongside her it was his conduct that looked suspicious, not hers. (Emphasis added)

The court concludes:

To initiate a stop, an agent must have an objectively reasonable basis for suspicion. The agent in this case did not have such a basis. Nothing about Mendoza’s car suggested she might be involved in criminal activity, and though she sought to avoid the agent, the evidence doesn’t suggest she knew he was law enforcement. That fact undercuts the agent’s inference that she was trying to avoid detection of criminal conduct, but given the setting, Mendoza’s reaction to being observed was so minor it wouldn’t provide adequate ground for suspicion even had the agent been driving a marked law enforcement vehicle. We therefore conclude the agent acted without a reasonable basis for suspicion when he stopped Mendoza, and the trial court erred in denying her motion to suppress.

Parole Search of Cell Phone Upheld Under Totality of Circumstance

• Delrio, ___ CA5 ___, ___ CR3 ___ (20) #A154848

Residential burglary in Redwood City. Surveillance video from a neighbor’s house showed two individuals walking from a black truck to the burglarized house and then walking away, each carrying a sack. After the residents of the home reported the burglary, a deputy sheriff contacted Delrio and told him that a vehicle registered to him had been involved in a burglary. Def. denied any involvement, told the deputy that he had loaned the truck to a coworker, and claimed that if the truck was involved with a burglary, it must have been used without his permission.

The deputy viewed the surveillance video and concluded that one of the two individuals shown in the video had “a very close resemblance” Def., who was on parole.

Deputies conducted parole search of Def’s house and phone. Incriminating pics, and later Def. admitted the robbery.

His suppression motion was denied, and the Court of Appeal, per Fujisaki, J., affirmed.

Def. argued that the parole form used by the California Department of Corrections and Rehabilitation (CDCR) did not check a box regarding “special conditions of parole” that would have required him to give his consent to, and any passwords for, searches of his electronic devices. Thus no notice of giving up his reasonable expectation of privacy in his phone.

The court found this argument to have “surface appeal,” but ultimately unconvincing.

As the California Supreme Court emphasized in Schmitz, Penal Code section 3067, subdivision (b)(3), provides that “every parolee is subject to warrantless and suspicionless parole searches,” and the reasonable scope of a parole search is not “strictly tied to the literal wording of the notification given to the parolee upon release.” (Schmitz, supra, 55 Cal.4th at p. 928.) Thus, while the reasonableness of a probation search has been held dependent on the literal wording of the notification given to a probationer, the reasonableness of a parole search does not derive from a theory of consent as has been found in probation search cases, but rather, is assessed based on the totality of the circumstances.

Re: the totality of circumstances:

Finally, we observe the cell phone search was not arbitrary, capricious, or harassing. (Reyes, supra, 19 Cal.4th at p. 752.) A search is arbitrary and capricious when the motivation for the search is unrelated to rehabilitative, reformative, or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee. (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.) Because the officers here had specific reasons to suspect that defendant was involved in a residential burglary, the search was related to legitimate parole monitoring and law enforcement purposes, and there was no evidence suggesting the officers had personal animosity towards defendant. The search took place at a reasonable hour and was not unreasonably prolonged. (Reyes, at pp. 753–754.)

Also of Note…

• SMITH, ___ CA5 ___, ___ CR3 ___ (20) #D075372: Neighbor reported unoccupied car running in driveway. Off. thought someone might be hurt inside. Entered. Drugs, weapon in plain view. Supp. Den. Rev. No facts indicating emergency medical or exigency.

However, as required by Ovieda, supra, 7 Cal.5th 1034, the officer pointed to no facts that reasonably supported his concern that someone inside the residence might be suffering from a medical emergency such as moaning or groaning from inside the home, blood or vomit near the vehicle or residence, or disarray inside the vehicle or near the home. Rather, the facts known to the officer were insufficient to provide him with ” ‘an objectively reasonable basis for believing’ that medical assistance was needed, or persons were in danger” such that a warrantless search of the residence was justified by the emergency aid exception.

• SHUMAKE, ___ CA5 ___, ___ CR3 ___ (20) Appellate Div. #6093: Offs pulled Def. over for license plate. Smelled MJ. Def. said he had “bud” in container. A little over 1 oz. Off. searched car. Pistol under seat. Supp. Den. Rev. Legal amount of MJ did not give rise to P-C to search.

• LEE, 40 CA5 853, 253 CR3 512 (19) #D073740

Following a traffic stop, officers asked Def. for license, which he did not have. Ordered out and patted down. A small amount of marijuana was in his pocket.

Offs then searched Lee’s car without a warrant and discovered 56 grams of cocaine, a firearm, and other items associated with selling narcotics. After Lee was charged with various drug and weapons offenses, he filed a motion to suppress the evidence obtained from the warrantless vehicle search. The trial court granted Lee’s motion, rejecting the People’s contentions that the search was proper under the automobile exception as supported by probable cause or, alternatively, as an inventory search of a vehicle following an impound.

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

Last year, Fews, 27 CA5 553, 238 CR3 337 (18) #A151727, held that even after Prop. 64, a legal amount of marijuana possessed during an auto stop could provide probable cause to search the vehicle if other factors give rise to an inference of unlawful activity. In Fews, the odor of MJ, “furtive movements,” and a blunt in the driver’s hands indicated driving UI or with an “open container” of MJ.

Here, however:

With the passage of Proposition 64 by voters in 2016, California law now permits adults 21 years of age and older to legally possess up to 28.5 grams, or about one ounce, of marijuana. (§ 11362.1, subd. (a)(1).) Critically, the statute expressly provides that “[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” (§ 11362.1, subd. (c), italics added.) … California law now specifically states that up to one ounce of marijuana possessed by an adult age 21 or over is not contraband.

***

If by this argument the People mean simply that possession of a small (legal) amount of marijuana does not foreclose the possibility that defendant possesses a larger (illegal) amount, they are obviously correct. But there must be evidence—that is, additional evidence beyond the mere possession of a legal amount—that would cause a reasonable person to believe the defendant has more marijuana. (Emphasis in original.)

The People also argued that the search was valid as an inventory search. But the court rejected this:

We likewise find no error in the trial court’s conclusion that the search was not valid as an inventory search. The search here served no community caretaking function. And based on the manner in which the search was conducted and the statements of the officer to Lee and his passenger, the trial court reasonably found that the primary purpose of the search was not to inventory the contents of Lee’s car, but rather to investigate Lee for possible criminal behavior. (Emphasis in original.)

Patdown of Robbery Suspect Invalid Without Facts Indicating Armed and Dangerous

• JEREMIAH S., ___ CA5 ___, 254 CR3 88 (19) #A155856

San Francisco woman robbed of her purse and iPhone by “two young black men” wearing hoodies. Police used the Find My iPhone app to locate the phone by Pier 19. Offs on patrol picked up the dispatch. The offs spotted two minors matching the description and detained them. There was no sign of a weapon on Def., but the Off patted him down because “a robbery occurred” and he knew that “most robberies involve a weapon or most robbers tend to have weapons on their persons.” Off recovered the stolen iPhone.

Def’s motion to suppress was denied. The Court of Appeal, per Fujisaki, J., reversed.

Based on our independent review of the undisputed facts, we conclude the officer who conducted the patsearch did not present specific and articulable facts to support a reasonable suspicion that Jeremiah was armed and dangerous. In so concluding, we decline to recognize a rule that would essentially validate any patsearch of a suspected robber who is lawfully detained following a report of a fresh robbery, regardless of the particular circumstances.

So what sorts of articulable facts should be considered?

Considerations relevant to this inquiry typically include visible bulges or baggy clothing that suggest a hidden weapon; sudden movements or attempts to reach for an object that is not immediately visible; evasive and deceptive responses to an officer’s questions about what the individual was doing; and unnatural hand postures that suggest an effort to conceal a weapon…Other relevant circumstances can include the type of crime at issue; the detained individual’s suspected involvement in such a crime; and the searching officer’s experience with such crimes and their associated weapon use in the particular location of the detention. [Citations omitted].

Seizing Defendant’s Dash Cam Valid Under Exigent Circumstances

• Tran, ___ CA5 ___, ___ CR3 ___ (19) #D074605

Def was involved in a collision with a motorcycle when his car crossed a double yellow line on a sharp curve in the road. At the time of the accident, the motorcycle rider sustained serious injuries, and it was believed that he could die from those injuries.

Arriving Off approached Def who was sitting on the side of the road with a backpack. Off asked Def if he had a dashboard camera. Def admitted he had one. Off then asked if he had removed the camera from his vehicle, and Def stated he had. Off asked where it was, and Def said in his backpack. Off asked Def to get it and give it to him, fearing that Def might somehow destroy the video evidence on the dash cam.

Offs later secured a search warrant to examine the dash cam evidence. Def was charged with reckless driving. He moved to suppress the dash cam evidence. Denied.

The Court of Appeal, per Huffman, Acting P.J., affirmed.

The People argued that the seizure of the evidence was valid under the exigent circumstances (possible destruction of evidence). The court agreed:

Based on the record before us, we conclude that all the circumstances, and the rational inferences stemming from them, existing at the time Palmer seized the dashboard camera would have caused a reasonable officer to believe that immediate acquisition of the camera was necessary to preserve the potential evidence on it. Palmer’s testimony at the suppression hearing supports a rational inference that the camera contained footage of Tran driving. Palmer further relied on his investigation of the scene, his experience in dealing with high-performance cars with dashboard cameras, his knowledge of dashboard cameras, the fact Tran removed the camera from the car and placed it in his backpack, and Tran’s hesitancy in providing the camera to conclude he must seize the camera to prevent the destruction of evidence. His response was objectively reasonable.