Bell's Compendium

 • BREWER, ___ CA5 ___, ___ CR3 ___ (17) #A151584

 Def. was passenger in the back seat of a van, behind the driver. Offs approached and Def. “ducked down.” Off. then approached the front passenger seat and “located” marijuana in the possession of the person sitting there. Offs conducted a search of the vehicle (apparently after ordering the three occupants out). They found a Glock 10-millimeter loaded with a 15-round magazine underneath the rear of the driver’s seat.

Def. was charged with possession of a firearm with a prior violent conviction; having a large-capacity magazine; and carrying a loaded firearm.

At the prelim, Def. moved to suppress. Denied, the court holding that he lacked a legitimate expectation of privacy. After the prosecution filed an information, Def. moved under 995 to set it aside, renewing his argument that the gun evidence should be suppressed. Denied again.

Def. filed for a write of mandate, arguing that he was not challenging the search of the vehicle, but that he himself was unlawfully detained, and therefore the gun was the fruit of the poisonous tree.

The Court of Appeal, per Rivera, Acting P.J., issued a writ of mandate issue directing respondent Superior Court to vacate and set aside its ruling denying the motion to set aside the information, and to thereafter conduct further appropriate proceedings. The Court stated:

The parties have not cited any cases from California holding that a defendant may move to suppress evidence as the fruit of an unlawful detention even if the defendant lacked an expectation of privacy in the vehicle where the evidence was found. But there is an abundance of authority from other jurisdictions that supports defendant’s argument.

Well, yes, but all you need is BRENDLIN, 551 US 249 (07), which held that when a police officer detains a vehicle, both driver and passenger are seized and may challenge the constitutionality of the stop.

Done and done.

Defendants’ Rights in the Digital Age

This is a fast-evolving area of law. The United States Supreme Court has granted cert. in a case called United States v. Carpenter. The court will consider the scope of the Fourth Amendment’s protection of information contained in a cellular carrier’s records.

Two issues in that case: Whether digital information voluntarily exposed to others is protected by the Fourth Amendment; and whether government access to information collected by a private business in order to provide a service to a customer constitutes a search.

Another issue currently under consideration by the California Supreme Court is whether a criminal defendant has a constitutional right to obtain social media records from an online hosting service (Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203, review granted December 16, 2015, S230051).

The Court of Appeal has tackled the same issue in Facebook, Inc. v. Superior Court, 15 CA5 729, 223 CR3 660 (17).

Real Party in Interest, Touchstone, was on trial for attempted murder. The victim was active on the public portion of Facebook about the incident and his recovery. Touchstone sought access to the nonpublic content of the Facebook account, to be examined in camera, arguing there could be exculpatory evidence. He served Facebook with a subpoena. Facebook filed a motion to quash, citing the Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.)

Held, the SCA prohibits electronic communication service providers from knowingly divulging to any person or entity the contents of a nonpublic communication. While the statutory prohibition is subject to limited exceptions, none applied here.

Much more on this will be coming in the months and years ahead. Meanwhile, there is no truth to the rumor that YouTube, Twitter and Facebook are going to merge into one online site called YouTwitFace.

My Dad’s Book

Dad died in 1988, and I still miss him. Many of you never got to meet him, though there are still many who remember him and how helpful he was to young lawyers, or how entertaining a speaker when covering California search and seizure law.

What you may not know is his background. Raised in Hollywood, he was a star football and baseball player at Hollywood High School. He went on to play catcher for the UCLA baseball team, where his teammate was one Jackie Robinson.

In college he joined the Navy ROTC program and saw action throughout World War II. He was captain of three ships: the destroyers USS Dallas and USS Kinzer, and his first command and first love, the PC 477.

The PCs were 173-foot, steel-hulled submarine fighters. Uncle Sam had thousands of seamen on hundreds of PCs convoying and patrolling in WWII. They were introduced in the desperate days of early 1942, when the waters off America’s Atlantic coast were a graveyard of torpedoed ships. They performed essential, hazardous, and sometimes spectacular missions. Dad was part of all that.

In the late 1970s, Dad decided to write a memoir of his time aboard the PC 477 (the ship’s nickname was “Peter Charlie”). It was a true labor of love, and brought him back in contact with many of his shipmates. He collected letters and stories and photos, and wrote the book.

Dad self-published Peter Charlie in 1982. He paid a local printing outfit a princely sum to do a beautiful hardback edition, with dust jacket and all. I can’t recall how many he had printed up. Maybe 2,000. He sold them himself out of his law office and it found popularity among many ex-Navy men all over the country. When Dad died, I took over his practice and the writing of Bell’s Compendium. And I am proud to report that by 1999 or so, the entire print run had sold out. The book even returned a bit of a profit! But that appeared to be as far as this memoir would go.

And then the Kindle happened! And now, through the wonder of digital publishing, the book will never again be out of print.

My hope is that those who had parents or grandparents who served in WWII, and anyone interested in a first-hand report of what life was like aboard a naval vessel at that time, will be both edified and educated by this account. It is full of funny stories, historical data, some rare photos, and lots of interesting details.

You can read Peter Charlie on your Kindle or via the free Kindle app for your smartphone or tablet. All you have to do is go right here.

• IN RE D.W., 13 CA5 1249, 221 CR3 332 (17):

San Francisco police were on patrol in response to a broadcast that someone in the area might have a firearm. They saw five to eight individuals, most of whom they knew to have gang associations, standing on the corner in a rival gang area. The officers were concerned that the group might be ready to rumble.

Officers approached D.W, smelled marijuana on his clothes and breath. One officer said, “Man, you smell like marijuana,” and D.W. admitted he had just blazed.

The officers decided to search D.W. to see if he had more hippie lettuce. They patted down his backpack felt a revolver. After conducting the search, the officers determined that D.W. was 17 years old.

D.W. moved to suppress the gun. He argued: “In the case at bar, none of the officers on the scene observed any suspected drug contraband in plain view of the minor. . . . Smelling of marijuana is not a crime; being under the influence of marijuana is not a crime. There was no probable cause to search him. There was no probable cause to arrest the minor for anything (and thereby, search him incident to a valid arrest), and there was no reasonable suspicion that he was armed and dangerous.”

The trial court denied the motion. The Court of Appeal, per Siggins, J., reversed.

The People tried to justify this as a “search incident.” But incident to what? Not arrest, because, as the court explains:

But at the time of this search in 2015, possession of less than 28.5 grams of marijuana was an infraction punishable by a fine of not more than $100. (Health & Saf. Code, § 11357, subd. (b).) Under California law ingestion or possession of marijuana was a minor, non-jailable offense. (People v. Hua (2008) 158 Cal.App.4th 1027, 1037.) Moreover, even if the officers could reasonably conclude that the smell of marijuana and D.W.’s admission that he just smoked some meant he had more, it would have been mere conjecture to conclude that he possessed enough to constitute a jailable offense.

This case may be used as authority post Prop. 64. California’s booyah-friendly Health & Safety Code adds the following at H&S 11362.1(c):

Marijuana and marijuana 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.

 

Distressed Dogs Justified Entry Into Yard

• Williams, ___ CA5 ___, ___ CR3 ___ (17) #B275226

A field officer with the Los Angeles County Department of Animal Control responded to a report of a loose horse out near Lancaster. He followed the horse slowly in his vehicle until the horse stopped at a property and tried to get in through a fence.

The officer heard several dogs barking at the place. He walked along the outside of the fence toward the horse to try to determine if the dogs were loose and could frighten or injure the horse. He saw the dogs were confined in “makeshift” kennels of chain link fencing and plywood inside the yard.

He called for backup and a trailer for the horse. The other officer arrived and they knocked at the property but got no response. They heard several dogs barking in the back yard, as well as a dog barking and “whining” from inside the garage. There was a strong smell of “excessive” fecal matter. One officer looked through a broken window in the upper corner of the garage door. There was a dog inside, in conditions that appeared “unhealthful.” He also saw a “slat mill” partially covered by a tarp. A slat mill is a device used in the training of fighting dogs.

They went through an open gate into the backyard, and found several pit bulls in cages, two of them with scars.

They took several photos. The owner arrived and was issued a misdemeanor citation for the horse. Several weeks later a search warrant was served on the property.

The officers recovered 19 pit bulls (11 adults and 8 puppies), many of which were emaciated or had sores or scars. They also recovered the slat mill device and three boxes of documents related to dog fighting, among other items.

Defendants’ motion to suppress was denied. The Court of Appeal, per Grimes, J., affirmed.

The primary issue was whether exigent circumstances allowed the officers to enter the yard and make the observations that were the basis for the search warrant.

Defendants argue there were no circumstances that justified the officers proceeding into the back yard after having looked in the garage. Given the facts known to the officers, it was not unreasonable for them to be concerned about the condition of the dogs they could hear barking incessantly from the back yard. They could have reasonably believed they were justified to walk into the back yard and briefly check on the dogs in the kennels that were visible from outside the fence.

 

Speculative Impound Scenario Not Enough to Justify Inevitable Discovery Exception 

• WALLACE, ___ CA5 ___, ___ CR3 ___ (17) #A149049

Defendant sought reversal of the judgment against him for possession of a baton or similar weapon in violation of Penal Code section 22210, which the court entered after a negotiated disposition of his case.

Officer Ambrose of the Fairfield Police Department found the baton in defendant’s vehicle after defendant was stopped by another officer for a traffic violation and then arrested at the scene by Ambrose as a suspect in a domestic violence incident.

Defendant argued that the trial court erred when it denied his motion to suppress evidence relating to the baton on the ground that it was obtained during an inventory search of his vehicle.

The People did not defend the search as a valid inventory search or otherwise that it was constitutionally permissible. Rather, they asserted that the judgment should be affirmed because police inevitably would have discovered the baton in the course of impounding the vehicle and taking an inventory of its contents.

But the court concluded there was no substantial evidence either that the evidence was obtained as the result of a valid inventory search, or even that one occurred.

The People’s inevitable discovery argument fails because it requires us to build speculative inference on top of speculative inference …

First, as already discussed, the record is silent as to whether anyone even considered towing the vehicle …

Second, there is no indication that the vehicle was actually towed …

It is possible that defendant’s vehicle was towed but, again, a mere possibility does not rise to the level of substantial evidence.

• NGUYEN, 12 CA5 574, 219 CR3 124 (17) #H042795:

Police identified an IP address for an Internet account sharing child pornography online. Comcast identified the account subscriber as Jennie Reynolds at 309 South 23rd Street in San José. The police obtained a search warrant for the residence, garages, and outbuildings at the address.

While searching Reynolds’ house, the police discovered defendant Kevin Nguyen was living in a separate residence behind the house. The police then searched Nguyen’s residence and found a laptop with child pornography. The trial court found the search overbroad and granted Nguyen’s motion to suppress.

The Attorney General appealed. He contended the warrant expressly authorized the search. He argued the warrant affidavit set forth probable cause to search any residence on the property because anyone on the property could have accessed Reynolds’ computer network wirelessly. Finally, the Attorney General contended the police acted in good faith reliance on the warrant.

The Court of Appeal, per Premo, J., held the police lacked probable cause to search defendant’s residence because they had no basis to believe the suspect network was accessed from defendant’s residence. They further held that the warrant did not expressly authorize the search, and the police lacked good faith reliance on the warrant.

We find no language in the warrant authorizing a search of Nguyen’s residence. The warrant identified “a single story single family residence” to be searched—i.e., the front house on the street, which the warrant described in detail. The warrant makes no mention of Nguyen’s residence. As to the claim his residence was included under the term “garages” in the warrant, the trial court made a factual finding that the rear structure was not “simply a garage” but was “plainly a separate residence.” Under our standard of review, we are bound by the trial court’s finding if it is supported by substantial evidence.

***

We hold the police lacked probable cause to search Nguyen’s residence because the police had no basis to believe the network with the suspect IP address was accessed from Nguyen’s residence. The Attorney General contends this rule creates “an unreasonable Catch-22” because the police have no way to ascertain which buildings on a property have access to a given network. The Attorney General asserts this creates “an unduly stringent burden on investigators.” But as the trial court pointed out, the police could have done several things to establish probable cause for a search of Nguyen’s residence. After entering Reynolds’ house, officers could have asked her if she had a wireless network, whether it was password-protected, or whether Nguyen’s residence shared access to the network. If the police had established probable cause to believe Nguyen’s residence held evidence of a crime, they could have obtained a telephonic warrant. Given that Nguyen was held at the Mountain View Police Department during the search, the police had sufficient time to do so.

***

[Finally, t]he Attorney General argues the police acted in good faith reliance on the warrant, even if the search exceeded the scope of the warrant. The trial court rejected this claim. The court found the police knew Nguyen’s residence was not a garage before they searched it, and the court found police had no basis to believe his residence had access to the suspect network. The court’s analysis was sound.

Passenger’s Probation Search Condition Leads to Inevitable Discovery of Drugs

• Cervantes, 11 CA5 860, 217 CR3 830 (17)

Offs stopped Def’s car for expired registration. They searched his vehicle after they learned that the adult female riding in the front passenger seat had provided them with a false identity and was subject to a felony warrant and probation search condition.

In the back seat they saw guy stuff: a “men’s toiletries bag” and an opaque bag with guy stuff in it … like boxer shorts. But they also found a baggie with meth.

They then searched the center console and found more of what turned out to be meth. Def. moved to suppress. Denied.

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

Def. argued that the Offs should not have searched the men’s items because it was a woman who was subject to the probation search condition. The court, however, stated:

We need not address this specific argument because we agree with the Attorney General that even if Officer Larson had not begun his search with those bags, he would inevitably have discovered the drugs contained in them. That is, Officer Larson was (as we will explain) entitled to search the center console; he undoubtedly would have done so regardless of whether he first discovered drugs in the backseat bags; he would have found the methamphetamine in the center console; and he then would have justifiably searched the rest of defendant’s car and its contents, leading to his inevitable discovery of the drugs in the backseat bags.

See also …

Guzman, 11CA5 184, 217 CR3 509 (17): Def. charged with two counts of of lewd acts upon child under 14. Def. called minor witness to challenge victim testimony. People offered phone call with wit. and vic’s mother to impeach. Supp. Den. Aff. Exclusionary provision of Cal’s Invasion of Privacy Act limited by Prop. 8.

• Parrott, 10 CA5 485, 216 CR3 208 (17):

Two police officers were driving on Pine Street in Eureka, California one night. As they approached an intersection they observed a small purple hatchback without illuminated rear or brake lights, rolling backwards toward the intersection. Not knowing if there was a driver in the vehicle, the officers positioned their patrol car behind the hatchback to keep it from rolling further down the street. Seconds later the vehicle came to a stop, Parrott exited from the driver’s side of the vehicle and proceeded to push it to a nearby curb.

One Officer, Harkness, asked if he could assist Parrott, offering a tow truck or a ride. Parrott replied that he didn’t really need any assistance. Parrott was wearing a hooded sweatshirt, with a visibly heavy item bulging from the front pocket. As the interaction progressed, the officer noticed Parrott appeared nervous and continued to touch the bulging item in the front pocket of his sweatshirt.

Officer Harkness asked Parrott to step off the road and onto the sidewalk. When on the sidewalk, Harkness asked for name and date of birth. The officers then reported Parrott’s name to dispatch. Parrott appeared nervous. At one point, Harkness asked Parrott to refrain from reaching into the front pocket of his sweatshirt, fearing it might contain a weapon.

Dispatch informed the officers that Parrott’s license was suspended. Harkness tried to cuff him, but Parrott resisted. He was subdued and patted down. He had a gun in the sweatshirt.

Parrott was charged with possession of a firearm by a felon and driving without a valid driver’s license. He moved to suppress the evidence. The trial court denied the motion.

The Court of Appeal, per Ruvolo, P.J., affirmed.

The court addressed two issues:

(1) At what point in the encounter was appellant detained?

In determining whether a reasonable person would have believed he or she was free to leave or end the encounter, a court must take into account the totality of the circumstances from the perspective of a reasonable person in the defendant’s position.

***

Appellant contends he was detained when officers asked him to keep his hands out of his pockets and to step onto the sidewalk. We disagree.

When Officer Harkness initially contacted appellant, he did so to inquire about appellant’s disabled vehicle and to offer assistance. A reasonable person in appellant’s position would have realized that, by offering him a tow truck or a ride to someone who could repair the car, Officer Harkness was attempting to help appellant get out of his predicament. There are no facts in the record indicating the initial interaction was anything more than a consensual encounter, or that the officer was investigating criminal behavior.

As the interaction progressed, Officer Harkness asked appellant to refrain from placing his hands in his pockets and to provide his name and date of birth. Appellant argues that, considering the totality of the circumstances, these requests constituted a show of authority that indicated to appellant “an investigation was being focused on him.” …

[A]sking an individual to keep his hands out of his pockets is not akin to conveying to an individual that they are suspected of being involved in unlawful activity. Rather, asking appellant to keep his hands out of his pockets is a normal, expected response to an officer’s concern for his or her own personal safety during the encounter. Furthermore, prior to being asked to move onto the sidewalk, there was no application of force, no brandishing of weapons and no blocking of exits. Finally, even after the parties moved onto the sidewalk appellant asked the officers if he could smoke a cigarette, and one of the officers responded by stating “there was no reason that he couldn’t smoke a cigarette.”

(2) Did the officers have the proper level of suspicion to justify a detention and patdown search?

The patdown did not begin until it was confirmed that appellant did not have a valid driver’s license, and only after he physically resisted two attempts by the officers to handcuff him. Given these circumstances and the struggle that ensued, the officers justifiably feared that appellant was armed, and thus the patdown search was a lawful search under the Fourth Amendment.

Police May Enter Home Without Warrant to Aid Potential Victim

Pou, 11 CA5 143, ___ CR3 ___ (17) #B269349:

In Fisher, 558 US 45 (09) and Troyer, 51 C4 599 (11), the U.S. Supreme Court held that officers may enter a residence without a warrant if they reasonably believe there is a potential victim inside.

In this case, officers received a call about a woman screaming, along with “distressed moaning.” They arrived and heard loud male and female voices arguing. Through the window one officer saw two males gesturing angrily. The officers knocked and kept on knocking until defendant opened up. They went in and searched to make sure everyone was okay … or perhaps in a closet, wherein they found cocaine … enough for sale.

Def’s 1538.5 motion was denied, and the Court of Appeal, per Kin, J., affirmed.

Here, the officers were told by the radio dispatch operator that someone had reported hearing a screaming woman and distressed moaning at the location. Upon arrival, consistent with the radio dispatch call information, the officers could hear from the outside loud voices—both male and female—engaged in an argument inside the house. One officer additionally saw through the window that two males in the house were gesturing as if arguing. Under these circumstances, it was objectively reasonable for an officer to believe that immediate entry was necessary to render emergency assistance to a screaming female victim inside or to prevent a perpetrator from inflicting additional immediate harm to that victim or others inside the house.

Further, the court found that the scope of the search was reasonably tied to the apparent emergency with which the officers were presented. It was a “very large house” and the officers were entitled to conduct an emergency search of “all places in the house where a body (victim or suspect) might have been hiding or lying in wait, including the closet in which the drugs were found.”

•  MACABEO, 1 C5 1206, 211 CR3 34, 384 P3 1189 (16)

Detective Hayes and Officer Raymond of the Torrance Police Department were on routine patrol at 1:40 a.m. in a dark, residential neighborhood. When they saw defendant on a bicycle roll through a stop sign, they activated their overhead lights and stopped him.

After inquiring about defendant’s probation status, Hayes asked if defendant had “any problem with me taking stuff out of your pockets,” and defendant said “go ahead.”

Hayes removed a number of items, including defendant’s phone. Hayes gave it to Officer Raymond. Defendant was never asked for permission to activate the phone or examine its contents. After five to 10 minutes, Raymond told Hayes that he had found no suspicious text messages on defendant’s phone, but that the picture folder contained images of underaged girls. Defendant was then arrested for possession of child porn.

Defendant moved to suppress. The court denied the motion. The Court of Appeal affirmed. But the California Supreme Court reverses.

In People v. Diaz (2011) 51 Cal.4th 84 (Diaz), we held that, incident to a custodial arrest, police may search through data on a defendant’s cellular phone without obtaining a warrant. The United States Supreme Court subsequently held to the contrary in Riley v. California (2014) 573 U.S. __ [134 S.Ct. 2473] (Riley).

Under Riley, the “ordinary justifications for searches incident to arrest are to secure weapons, prevent escape, and preserve evidence of crime. These apply with less force in the context of cell phone data. With respect to officer safety, ‘[o]nce an officer has secured a phone and eliminated any potential physical threats . . . data on the phone can endanger no one.’ (Id. at p. __ [134 S.Ct. at p. 2485].)”

The People argued that the officers here relied in good faith upon Diaz. But the court held that even under Diaz, this would not have been a proper search.

The Court concludes:

So, the posture of our case is this. First, the phone search was conducted without a warrant and was improper unless justified by an exception to the warrant requirement. Second, defendant was not on probation, so the search could not be based on that nonexistent status. Third, the People concede that defendant did not consent to the search of his phone. Fourth, the search did not qualify as incident to arrest under the Fourth Amendment. Fifth, under Riley, even if defendant had been properly arrested, a warrant was required to search the phone.

“Do It Yourself” Suppression Motion Was a Losing Game of “Hide and Seek”

• Quick, 5 CA5 1006, 210 CR3 256 (16)

Def. was pulled over by Atascadero police officer for bad taillight. Def. said that he had recently rewired the car and may have incorrectly connected the wires. Off. noticed that Def’s pupils were constricted, he was exhibiting facial tremors, and open sores on his face. These were symptoms of a person under the influence of a controlled substance. Def. admitted using Percocet and marijuana earlier in the day.

He was ordered out of the car for field sobriety tests. Knowing “his goose was cooked” if searched (fowl language courtesy of the court), Def. took off his jacket and threw it in the car, rolled up the window, tossed in his keys, locked the door and closed it.

Def. failed the FSTs. His car was blocking a driveway so it was ordered towed. An inventory search turned up 25.9 grams of methamphetamine (259 to 518 single doses) in the jacket pocket, two meth pipes, and a Taser.

Def. moved to suppress, contending that the search was invalid as both an inventory search and a search incident to arrest. Suppression motion denied.

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

The court held it was a valid inventory search. The inventory officer testified that …

… the sole purpose of the impound search was to inventory what was in the vehicle and to verify that nothing was missing when the vehicle was returned to appellant. Vehicle Code section 22651 authorized the vehicle impound. (See People v. Aguilar (1991) 228 Cal.App.3d 1049, 1053 [court focuses on the purpose of the impound rather than the purpose of the inventory].) When a vehicle is lawfully impounded, an inventory search pursuant to an established, standardized procedure does not violate the Fourth Amendment. (South Dakota v. Opperman, supra, 428 U.S. at pp. 371-375; People v. Nottoli (2011) 199 Cal.App.4th 531, 545-546; People v. Evans (2011) 200 Cal.App.4th 735, 743, fn. 5.)

In the alternative, the court also held that the search was valid incident to arrest. Def. argued that under Arizona v. Gant (2009) 556 U.S. 332, the search was unreasonable because the officers had no reason to believe that evidence relevant to the arrest for driving under the influence of a controlled substance would be found in the vehicle.

Appellant admitted using Percocet and marijuana earlier in the day and was under the influence of a controlled substance when driving. When he stepped out of the vehicle to perform the field sobriety tests, he threw his jacket and keys into the car, rolled up the window, and locked and shut the door. Officer Chesson thought it was “odd” behavior but consistent with what someone driving under the influence would do if trying to hide drugs. In accordance with Gant, “the focus of the inquiry is entirely upon the nature of the offense of arrest, rather than the particular facts of the case. [Citation.]” (People v. Evans, supra, 200 Cal.App.4th at p. 748.) “[W]hen a driver is arrested for driving under the influence, or being under the influence, it will generally be reasonable for an officer to believe evidence related to that crime might be found in the vehicle. [Citations.] It is certainly logical and reasonable to expect that items related to alcohol or drug consumption, such as alcoholic beverage bottles or drug paraphernalia, might readily be contained in the intoxicated driver’s car.” (Id., at p. 750.) The trial court did not err in finding that the search was reasonable and incident to the arrest for driving under the influence of a controlled substance. (Ibid.; People v. Nottoli, supra, 199 Cal.App.4th at p. 553.) A person arrested for driving under the influence may not defeat a “search incident to arrest” by locking incriminating evidence inside his vehicle. As indicated, it is a crime to do so.

The court made it plain:

The interaction between a peace officer and a person suspected of committing a crime is not a game… Knowing that his “goose was cooked” if the officer conducted a search, appellant attempted what was tantamount to a “do it yourself” suppression motion…This was a game of “hide and seek” which he was bound to lose. It was a sophomoric attempt to thwart the lawful seizure of evidence and a crime itself, i.e., a willful obstructing of a peace officer. (Pen. Code, § 148, subd. (a)(1).) A person detained for investigation has no constitutional right to dispose of evidence. (People v. Bracamonte (1975) 15 Cal.3d 394, 405, fn. 6; People v. Maddox (1956) 46 Cal.2d 301, 306.)

• Evensen, ___ CA4 ___, ___ CR3 ___ (16) #A145162

By using a set of software tools known as RoundUp, Napa police learned that an IP address, later determined to be assigned to Evensen’s mother, had downloaded child pornography. RoundUp enables law enforcement officials to detect child pornography on peer-to-peer file-sharing networks. Peer-to-peer networks allow users to share digital files over the Internet. To access these networks, users need only download onto their computers a free software program. The program allows a network user to upload a file onto his or her computer, and it then allows other users to access and download the file onto their own devices. A user who buys a music CD, for example, can convert it into a digital file and upload it onto the peer-to-peer network, thereby allowing other users to access and download the file.

When a network user uploads a file, it is placed in a “shared folder” on the user’s computer. Other users can find files in shared folders by using a keyword search.

Officer Darlene Elia of the Napa Police Department used the RoundUp website to look for Napa County IP addresses used to download or share child pornography. She searched all available peer-to-peer networks. The search returned an IP address, eventually determined to be Evensen’s mother’s. RoundUp flags files known to be child pornography by coding them in red. Looking at RoundUp’s historical list for this particular IP address, Officer Elia saw over 200 red flags.

Using a public website, Officer Elia determined that the IP address was registered to Comcast. Officer Elia then obtained and executed a search warrant for Comcast records and discovered that the subscriber for the IP address was Evensen’s mother. Officer Elia then obtained a second search warrant for the mother’s home. Evensen was present when Officer Elia executed the warrant. After searching Evensen’s room, Officer Elia arrested Evensen and read him his Miranda rights.

Evensen’s arrest was made public, and evidence of more sex crimes came to light. After hearing of the arrest, Jane Doe 1 came forward and claimed that Evensen had raped her and performed other sex acts on her while she slept. Jane Doe 2, whom police identified from images on one of Evensen’s external hard drives, revealed that she had, at Evensen’s request, sent sexually explicit images of herself to him when she was 16 years old. And Jane Doe 3, who was identified by Jane Doe 1 from an image seized from Evensen’s home, told police Evensen had performed various sex acts on her while she slept.

In his motion to suppress, Evensen argued that the use of the RoundUp program amounted to an unconstitutional search and that all of the evidence against him should be suppressed because all of it emanated from this search. After a hearing, the trial court denied the motion, and Evensen then pleaded no contest to one count of advertising for sale obscene matter depicting a minor (Pen. Code, § 311.10), three counts of oral copulation of an unconscious person (id., § 288a, subd. (f)), one count of rape of an unconscious person (id., § 261, subd. (a)(4)), two counts of using a minor for sex acts (id., § 311.4, subd. (c)), and two counts of sodomy of an unconscious person (id., § 286, subd. (f)). He was sentenced to fifteen years, eight months in prison.

The denial of the suppression motion was affirmed, per Humes, P.J.

Computer users generally have an objectively reasonable expectation of privacy in the contents of their personal computers. (United States v. Ganoe (9th Cir. 2008) 538 F.3d 1117, 1127 (Ganoe).) But there are exceptions to this general rule, and one of them is that computer users have no reasonable expectation of privacy in the contents of a file that has been downloaded to a publicly accessible folder through file-sharing software.

***

Evensen testified that he did not always immediately move files out of his shared folder and that another network user once partially downloaded one of his pornographic files. He cannot claim that his shared folder was private at all times or that he believed it to be. Moreover, RoundUp would not have even detected Evensen’s files if they had never been publicly accessible. According to Officer Ichige, RoundUp compiles information from files stored in network users’ shared folders and cannot search files stored elsewhere on users’ computers.

9th Circuit

“Knock and Talk” Exception Not Applicable When Officers Intended to Arrest

• LUNDIN, ___ F3 ___ (9 Cir. 16) #14-10365

At 4:00 a.m. three officers approached Eric “Whitey” Lundin’s home without a warrant. Lundin was a member of the Mongols motorcycle gang. He had threatened a woman with death, brandishing two handguns. The officers came to “knock and talk” and arrest Lundin.

On his front porch they knocked on the door. They heard crashing noises coming from the back of the house. They ran to the back, ordered Lundin to come out of the fenced-in backyard, and arrested him. After putting Lundin in a patrol car, several officers briefly searched Lundin’s home, including the back patio where they found two handguns in open view. The handguns matched the description of guns used in the threat.

Lundin was charged with being a felon in possession of a firearm and ammunition. He moved to suppress the evidence obtained from the patio and inside the house, as well as statements he had made before he was read his Miranda rights. The trial court granted with respect to the guns, but not the statements. The 9th Circuit Court of Appeals affirmed, and remanded.

The government argued exigent circumstances, in this case hearing the crashing noises in the back. The issue, then, was whether the officers had the right to be within the curtilage of Lundin’s home when they knocked on his door.

The government contends that the officers were permitted to knock on Lundin’s door under the so-called “knock and talk” exception to the warrant requirement, which permits law enforcement officers to “‘encroach upon the curtilage of a home for the purpose of asking questions of the occupants.’” Perea-Rey, 680 F.3d at 1187 (quoting United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001)). The “knock and talk” exception resembles to some degree the exception for consensual searches. The relevant “consent” in a “knock and talk” case is implied from the custom of treating the “knocker on the front door” as an invitation (i.e., license) to approach the home and knock. Jardines, 133 S. Ct. at 1415 (citation omitted).

However:

The “knock and talk” exception to the warrant requirement does not apply when officers encroach upon the curtilage of a home with the intent to arrest the occupant.

Also from the 9th Circuit:

• EVANS, ___ F3 ___ (16) #14-10024:

Applying Rodriguez v. United States, 135 S. Ct. 1609 (2015), the panel held that, by conducting an ex-felon registration check and a dog sniff, both of which were unrelated to the traffic violation for which he stopped Evans, an officer prolonged the traffic stop beyond the time reasonably required to complete his traffic mission, and so violated the Fourth Amendment, unless there was independent reasonable suspicion justifying each prolongation. The panel remanded to the district court for consideration in the first instance of whether the officer’s prolongation of the traffic stop was supported by independent reasonable suspicion.

• Carey, ___ F3 ___ (9 Cir. 16) #14-50222

 The facts are pretty simple. Federal agents secured a wiretap order for a San Diego phone number based on evidence that one Escamilla was using the number in a drug smuggling and distribution conspiracy. Agents monitoring the wiretap overheard drug-related phone conversations. At some point during a seven-day period, the agents realized that Escamilla was not using the phone.

Agents continued listening, believing the people speaking on the phone might have been part of the Escamilla conspiracy. The seven days of wiretap monitoring culminated in a traffic stop, and agents then confirmed that the persons on the phone had no connection to Escamilla.

Michael Carey was eventually identified as a speaker in some of the phone calls, and he was then charged with conspiracy to distribute cocaine. Carey moved to suppress the evidence obtained from the wiretaps, arguing that the government violated the Wiretap Act (18 U.S.C. §§ 2510–22) by never applying for a wiretap as to him or his coconspirators. The district court denied the motion, ruling that the government could rely on the Escamilla order to listen to Carey’s conversations.

The 9th Circuit Court of Appeals has a two-fold holding:

The Fourth Amendment provides an exception to the warrant or probable cause requirement when police see contraband in “plain view.” We adopt a similar principle today and hold that the police may use evidence obtained in “plain hearing” when they overhear speakers unrelated to the target conspiracy while listening to a valid wiretap, without having complied with the Wiretap Act requirements of probable cause and necessity as to those specific speakers. However, the agents must discontinue monitoring the wiretap once they know or reasonably should know that the phone calls only involved speakers outside the target conspiracy. Cf. Maryland v. Garrison, 480 U.S. 79, 87 (1987).

Case was vacated and remanded for fact-finding on the issue of when agents knew or should have known that the phone conversations did not involve Escamilla and his coconspirators. 

The Exclusionary Rule is Full of Streiff

Let’s take further stock of last term’s U.S. Supreme Court decision in Utah v. Strieff, 136 SC 2056 (16) [See the July, 2016 Poop Sheet].

The Court in Strieff held that an investigatory stop was unlawful, the discovery of an outstanding arrest warrant on a traffic ticket was sufficiently “attenuated” that a search incident to arrest was valid. Justice Thomas, writing for the majority, did so by analyzing the “three factors” explicated in Brown v. Illinois, 422 US.590 (1975).

It should be noted that legal analysts are split on whether “Three-Finger Brown” is truly that doctrinal. (That’s my own designation, by the way. There was a famous baseball pitcher named Mordecai “Three Finger” Brown, thus called that because a farming accident severed most of the index finger of his right hand. However, the resulting grip on a baseball enabled him to put extra spin on his curve. He was elected to the Baseball Hall of Fame in 1949.)

Orin Kerr, at SCOTUSblog (June 20, 2016), had this to say:

The Court presents the Brown three-factor test as if it were obviously the settled doctrine a court should apply. It’s worth noting that this is hardly so.

First of all, Brown itself does not say that the attenuation doctrine is a three-factor test. Brown suggests more of a “totality of the circumstances” analysis, with no exclusive list of considerations. As Brown stresses, there is no “talismanic test” for attenuation. Second, post-Brown attenuation cases have not focused on Brown or applied a three-factor test.

Given that, it’s a little odd that the Court proceeds through the three factors from Brown in an almost mathematical way. Two factors are strongly against suppression and only one is for it, the Court rules, so on balance the evidence isn’t suppressed.

***

All the Justices agreed on how to apply the first factor, which concerns the temporal proximity of the violation. The evidence was discovered just minutes after the illegal stop, so that weighs pretty clearly in favor of Edward Strieff. The Justices then divided on the remaining two factors, and I think the majority’s argument on these points was unpersuasive.

Consider the second factor, which looks to whether “intervening circumstances” made the discovery of evidence remote from the violation. The Court concludes that the officer’s discovery of the warrant was an “intervening circumstance” that was “entirely unconnected with the stop.” …

[Re: the] Court’s application of the third Brown factor, the purpose and flagrancy of the violation. Although the majority opinion nowhere notes it, the government has the burden of proof in establishing attenuation. (Note the holding of Brown: “We conclude that the State failed to sustain the burden of showing that the evidence in question was admissible under Wong Sun.”) And in recent decades, the Court has gone out of its way to make clear that an officer’s intent is completely irrelevant to whether the Fourth Amendment was violated. That means that there is usually nothing in the record relevant to the officer’s purpose. How can the government meet its burden when there is no evidence in the record?

The majority largely fills this in, concluding that the Fourth Amendment violation was “at most negligent” and was based on “good-faith mistakes.”

***

I think Justice Kagan is right in her dissent that the majority’s approach practically invites police officers to make illegal stops. If you’re a police officer and you want to search a suspect to help investigate a crime, you just need to stop the suspect and ask for ID to see if he has an outstanding warrant. If there’s no warrant out for his arrest, you can let him go and he’s extremely unlikely to sue. If there is a warrant, you can arrest him, search him incident to arrest, and question him later; the courts will allow that evidence because you were acting in good faith by trying to investigate the crime. The police academies won’t teach officers to violate the law, of course. At the margins, though, officers will be encouraged to treat almost anything as reasonable suspicion to justify a stop. If in doubt, make the stop.

JSB: Much hangs in the balance now, of course. A 4-4 Court is split along discernable lines. Kerr noted that the socially-progressive Part IV of Justice Sotomayor’s dissent was not joined by any other justice. But as Prof. Lawrence Rosenthal notes in his SCOTUS post of Sept. 9, 2016, pondering the future of the 4th Amendment after Scalia:

Whether a future Court embraces Fourth Amendment originalism portends less for how any particular case will be decided than it does for the methodology of constitutional adjudication. The next Justice will decide whether the Court will struggle overtly with the difficult balance between liberty and order, or continue the even more fraught business of trying to apply eighteenth-century legal doctrine and expectations to twenty-first-century problems.

Strieff, ___ US ___, 136 SC 2056, ___ LE2 ___ (16) #14–1373:

Narcotics detective, Fackrell, conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing Strieff leave the residence, Fackrell detained Strieff at a parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.

The United States Supreme Court holds that while the investigatory stop was unlawful, the . The discovery of the warrant was sufficiently “attenuated” that a search incident to arrest was valid.

According to Justice Thomas, writing for the majority, the attenuation exception is as follows:

Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”

The opinion then analyzes in detail the “three factors” explicated in Brown v. Illinois, 422 US.590 (1975). Prosecution wins.

Much to the displeasure of Justice Sotomayor, who wrote in dissent:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic war­ rants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

 

Warrantless DUI Breath Test Valid Search Incident to Arrest. Blood Test is Not.

Birchfield, ___ US ___, 136 SC 2160, ___ LE2 ___ (16) #14–1468:

The Court undertook a balancing analysis, weighing the degree of intrusiveness against the governmental interests. Breath tests have “negligible” physical intrusion. Not so blood tests. The government’s need for BAC evidence is “very important.” Therefore:

Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.

We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.

The Court went on to hold that in states where test refusal can result in criminal sanctions, “implied consent” does not apply to the blood draw situation.

Mr. Al Menaster has observed that “The big question is what this means for Cal., which does not make it a crime to refuse but does provide for an enhancement.” There is certainly “an argument that the rule preventing refusal of a warrantless blood test from being a crime also bars imposing additional punishment for that refusal. The problem is that typically the officer offers the defendant a breath or blood test, and the refusal is generic.” Thus, a defendant would need “a specific refusal to take a blood test to fit into this case.”

Probation Search Did Not Cover Garage-Room Where Defendant Was Living

CARREON, ___ CA4 ___, ___ CR3 ___ (16) #H040632

Officers conducted a probation search of a residence where Def. was living with her son in an attached garage. They searched the garage unit, including drawers and a purse. In the purse was meth.

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

A probation search is based upon consent. But the garage/room her was in use by what was effectively an “overnight guest.” Does such a person have a legitimate expectation of privacy?

Yes.

The presence of an overnight guest should prompt a searching officer to pause and consider the guest’s privacy expectations before intruding into an area assigned to the guest. In our opinion, it flouts widely held social expectations to define joint access as simply having the physical ability to open a door, walk into a room, and open drawers.

Held:

We conclude that the prosecution did not present sufficient evidence to justify a warrantless search or an objectively reasonable belief that the probationer had authority over the contents of either the drawers or the purse in defendant’s bedroom.

Steele, ___ CA4 ___, 201 CR3 363 (16) # C077040:

Deputy sheriffs observed two vehicles traveling together. The lead vehicle was a dark colored SUV. The second was a white Jeep.

The deputies followed the two vehicles to a rural dead end road with no streetlights. They ran a check on the license plates. Dispatch informed the deputies that there was a felony arrest warrant for the registered owner of the lead vehicle. The deputies decided to conduct an enforcement stop on the lead vehicle based on the expired registration and the arrest warrant. They were not aware of any Vehicle Code violations associated with the second vehicle.

The deputies activated their emergency lights. Under People v. Brown, 61 C4 968, 972 (15), this is a detention because a reasonable person under the circumstances would not have felt free to leave.

The deputies approached the second vehicle, the Jeep, first, for “officer safety.” As one deputy testified, “As law enforcement officers, we are not going to walk past a vehicle in the middle of the night with a subject in it.”

Def was in the driver’s seat of the Jeep. Upon approach, a deputy smelled marijuana wafting forth. They asked Def to exit the vehicle. They found a bag of marijuana and two baggies of methamphetamine.

Def. moved to suppress. Denied. The Court of Appeal, per Mauro, J., affirmed.

Yes, this was a detention per Brown. But the facts in this case had a justification.

Here, as in Glaser, supra, 11 Cal.4th 354, Maryland v. Wilson, supra, 519 U.S. 408, and Taylor, supra, 41 P.3d 681, the initial approach of the deputies to defendant’s vehicle was not for the purpose of arresting defendant or for an investigation directed at him. The deputies stopped the lead vehicle for an expired registration and a felony arrest warrant. (People v. Saunders (2006) 38 Cal.4th 1129, 1135 [officer may stop a vehicle and detain a driver when there is articulable and reasonable suspicion that an automobile is not registered].) They did not have any information that defendant’s vehicle violated the Vehicle Code. However, while attempting to complete a lawful detention of the lead vehicle, the deputies were forced to either contact defendant because his vehicle was parked directly behind the lead vehicle or walk past defendant’s vehicle without knowing whether the occupants of that vehicle might pose a danger to the deputies.

The circumstances warranted caution by the deputies. It was dark. The deputies were at the end of a driveway, not visible from the highway. The lead and second vehicles appeared to be travelling together and the deputies did not know the identities of the drivers. There was a risk defendant could come up behind the deputies while they contacted the lead vehicle. As the United States Supreme Court has recognized, “traffic stops are ‘especially fraught with danger to police officers.’ [Citation.] ‘ “The risk of harm to both the police and the occupants [of a stopped vehicle] is minimized,” ’ . . . ‘ “if the officers routinely exercise unquestioned command of the situation.” ’ ” (Arizona v. Johnson (2009) 555 U.S. 323, 330-331 [172 L.Ed.2d 694, 702] [also stating an officer is not constitutionally required to give the passenger of a stopped vehicle an opportunity to depart the scene after exiting a vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her]; see Brendlin v. California (2007) 551 U.S. 249, 258 [168 L.Ed.2d 132, 140] [it is reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize the officer’s safety].) Officer safety is a weighty public interest warranting a brief detention of defendant to assure that defendant did not present a danger to the deputies while they approached and investigated the lead vehicle and its occupants.

Police Can Lie About Basis of Auto Stop if the Stop is Objectively Reasonable

Magallon-Lopez, 817 F3 671 (9 Cir. 16):

Officers investigating an interstate drug-trafficking ring learned through wiretap intercepts that a shipment of methamphetamine would be traveling by car from Washington to Minnesota. The vehicle would have Washington plates. They stopped a Volkswagen Passat en route in Montana; the car belonged to appellant Hector Magallon- Lopez, who was driving. Although the officer had not observed any traffic violations, he told Magallon-Lopez that the reason for the stop was Magallon- Lopez’s failure to signal properly before changing lanes. The officer knew this was not the real reason for the stop, but he did not want to disclose at that point the true nature of the investigation.

A drug sniffing dog was brought to the scene and hit on the car, which was then seized. Two pounds of meth under the trunk.

Def. moved to suppress. Not because of lack of reasonable suspicion to stop, but because the officer lied about the reason for the stop.

No dice, says the court:

That the officer lied about seeing Magallon-Lopez make an illegal lane change does not call into question the legality of the stop. The standard for determining whether probable cause or reasonable suspicion exists is an objective one; it does not turn either on the subjective thought processes of the officer or on whether the officer is truthful about the reason for the stop. If, for example, the facts provide probable cause or reasonable suspicion to justify a traffic stop, the stop is lawful even if the officer made the stop only because he wished to investigate a more serious offense. Whren v. United States, 517 U.S. 806, 812–13 (1996). Likewise, if the facts support probable cause to arrest for one offense, the arrest is lawful even if the officer invoked, as the basis for the arrest, a different offense as to which probable cause was lacking. Devenpeck v. Alford, 543 U.S. 146, 153–55 (2004); United States v. Ramirez, 473 F.3d 1026, 1030–31 & n.2 (9th Cir. 2007).

Search of Student’s Cell Phone Was Justified

In re Raphael C., 245 CA4 1288, 200 CR3 305 (16) #A143376

Firearm and magazine found in trash can on high school campus. Administrators suspected Minor’s involvement, and in the course of questioning him, they seized and searched his cell phone.

Interspersed with the text messages on the phone were a number of digital images, including a photograph of Minor holding what appeared to be the firearm found on campus. When the prosecution sought to use these images as evidence in the proceeding below, Minor unsuccessfully moved to suppress them.

The juvenile court found Minor had possessed an assault weapon, and it declared him a ward of the juvenile court.

Suppression denied. The Court of Appeal, per Jones, P.J., affirmed.

Here, school officials were confronted by a situation in which a loaded firearm had been discovered on school property. They were concerned Minor could be using his cell phone to communicate with students who might possess another firearm or weapon the officials did not know about. In these circumstances, “ ‘[t]he special need for an immediate response to behavior that threatens . . . the safety of schoolchildren and teachers . . . justifies the Court in excepting school searches from the warrant and probable-cause requirement, and in applying a standard determined by balancing the relevant interests.’ ”   (In re J.D., supra, 225 Cal.App.4th at p. 715, quoting T.L.O., supra, 469 U.S. at p. 353 (conc. opn. of Blackmun, J.).)

LARA, ___ F3 ___ (9 Cir. 16) #14-50120

Lara was subject to a probation search condition that required him to submit his “person and property, including any residence, premises, container or vehicle” to search and seizure “without a warrant, probable cause, or reasonable suspicion.”

Lara’s probation officers went to his residence to conduct a search. They had Lara sit on the couch. One of the Offs saw Lara’s cell phone sitting on a table and decided to give it a look see. He did not ask for permission. The other Off later testified that it is the department’s policy to search a cell phone when officers visit a probationer, even if the probationer objects.

Off. reviewed the most recently sent text messages on Lara’s cell phone and discovered messages containing three photographs of a semiautomatic handgun lying on a bed. The pictures had been sent to “Al,” who responded, asking if the gun was “clean.” Lara replied, “yup.” Al followed up by asking, “What is the lowest you will take for it?” and “How much?”

Oops.

Off. handcuffed Lara, and he and the other Off. searched Lara’s house and car for the gun. They did not find it, but they did find a folding knife, the possession of which violated the terms of Lara’s probation. They arrested Lara for the knife brought the cell phone to the Orange County Regional Computer Forensics Lab.

Lab personnel found GPS data embedded in the photographs of the gun and thereby determined the address where they were taken.

CSI!

Investigation revealed the location to be the home of Lara’s mother.

Lara was charged with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the gun and ammunition on the ground that it had been found as a result of illegal searches of his cell phone by Officer Ortiz and the lab.

Motion denied. The 9th Circuit Court of Appeals reversed.

First, the court held that probationers accepting a 4th Amendment waiver do not thereby waive all their rights. The search itself must meet the standard of reasonableness. That requires a balancing of interests.

The probationer’s privacy interest in his cell phone data won out.

“We recognize that his privacy interest was somewhat diminished in light of Lara’s status as a probationer. But it was not diminished or waived because he accepted as a condition of his probation a clear and unequivocal search provision authorizing cell phone searches (he did not) or because he subscribed to cell phone service using a different first name (he did).”

Warrantless Blood Draw of Unconscious DUI Suspect Violates 4th  

*Arredondo, 245 CA4 186, 199 CR3 563 (16): #H040980  *[NOTE: Review Gr. Cal. Sup. Ct.]

Def drove his Jeep Cherokee away from a party, where the booze was flowing, with six passengers. One of the passengers testified that after visiting a liquor store, Def began to “drive crazy.” He was, and flipped the Jeep over. Three of the passengers scurried into the night.

Two of the remaining passengers were hurt, one with a brain injury. Def was unconscious, and was taken to a medical center. After an hour and a half of treatment, during which Def was unconscious, the Off had a blood draw taken. At no time did he seek a telephonic search warrant.

Def. moved to suppress the blood evidence. Motion was denied on the grounds that he had given his consent. How could he give his consent when he was out cold? Why, the California Implied Consent Law, Vehicle Code section 23612 (§ 23612), subdivisions (a)(1)(A) and (a)(5).

The Court of Appeal, per Rushing, P.J., but only on the grounds of the Good Faith Exception. What the court says about warrantless blood draws from the unconscious is another matter.

Can’t do it. Not even under the implied consent statute.

First of all, you’ve got to love a DUI opinion in 2016 citing 1803’s marquee decision, Marbury v. Madison 5 U.S. 137, and that haymaker from 1824, Gibbons v. Ogden, 22 U.S. 1!

If imputed consent is to be held sufficient to sustain a warrantless search, the holding will have to come from a court other than this one. We fear the Fourth Amendment could be left in tatters by a rule empowering the state to predicate a search on conduct that does not in fact constitute a manifestation of consent but is merely “deemed” to do so by legislative fiat. It is far from implausible, for example, that a legislative body—state or federal—might decree, in the name of public safety or national security, that the use of the mails, or the phone lines, or the internet—all of which rely to a greater or lesser extent on publicly owned property or facilities or publicly provided services—constitutes consent to search the contents of all communications thus conducted. Consent to search homes might be “deemed” to be given by anyone taking advantage of various publicly provided or subsidized privileges—like use of public utilities, libraries, or schools. Consent to search the person might be “deemed” to be given by use of a public sidewalk or occupancy of a public place.

As mentioned, the court went on to hold thatt the blood evidence was admissible under the Good Faith exception of U.S. v. Leon, 468 US 897 (84). That’s because this is the first decision to hold that the implied consent law is not a sufficient ground for a warrantless blood draw.

And here’s the kicker (not from the court, but from the Poop Sheet’s editorial board): After this decision, law enforcement cannot claim “good faith” under similar circumstances. Why not? Because of the famous footnote 20 in Leon:

The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits. [468 US 897, ftn. 20].

Once an issue is settled by the appellate courts, it is the law that a reasonably well-trained officer should know about.