Bell's Compendium

Navarette, 572 US ___, 134 SC 896, ___ LE3 ___ (14) #12–9490:

A 911 caller reported that a truck had run her off the road. She was able to describe the truck, what direction it was going and the license plate. A dispatcher reported this to California Highway Patrol officers. A few minutes CHP spotted the truck, and pulled it over. As the two officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30 pounds of weed. The officers arrested the driver, petitioner Lorenzo Prado Navarette, and the passenger, petitioner José Prado Navarette.

The petitioners challenged the stop, arguing there was no reasonable suspicion of criminal activity. The Supreme Court, with a surprising dissenter, holds that the stop was valid.

The issue is whether an anonymous tip can provide the reasonable suspicion required to make a stop. In the past the Court has held that given sufficient corroboration, the “totality of the circumstances” can provide the justification.

The majority opinion, by Thomas, J., alludes to two contrasting Court decisions: Alabama v. White, 496 U. S. 325 (1990) and Florida v. J. L., 529 U. S. 266 (2000).

In White, the details provided by an anonymous tipster supplied the basis for a reasonable suspicion that crime might be afoot. The tipster’s details, which included an allegation of cocaine distribution, indicated that tipster had a “familiarity” with the suspect’s affairs. In J. L., the “bare-bones” details did not provide enough indication of the same familiarity.

In the present case, then, did the details provided by the tipster rise to such a level that the officers could reasonably conclude the reckless driving report might indicate ongoing criminal activity such as drunk driving?

Yes, holds the Court, because the details provided were that of an eye witness to the possible criminal activity, whereas in J. L. there was nothing to indicate the tipster had seen anything illegal.

The Court also reasoned that the timeline of the report indicated it came in just after the tipster said she was run off the road. “That sort of contemporaneous report has long been treated as especially reliable,” writes Justice Thomas. He concludes:

Although the indicia present here are different from those we found sufficient in White, there is more than one way to demonstrate “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U. S., at 417–418. Under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road. That made it reasonable under the circumstances for the officer to execute a traffic stop. We accordingly affirm.

Now comes the somewhat surprising dissent. It is by Justice Scalia, joined by Ginsburg, Sotomayor and Kagan. You don’t see that everyday.

And he is having none of the majority opinion:

I fail to see how reasonable suspicion of a discrete instance of irregular or hazardous driving generates a reasonable suspicion of ongoing intoxicated driving. What proportion of the hundreds of thousands—perhaps millions—of careless, reckless, or intentional traffic violations committed each day is attributable to drunken drivers? I say 0.1 percent. I have no basis for that except my own guesswork. But unless the Court has some basis in reality to believe that the proportion is many orders of magnitude above that—say 1 in 10 or at least 1 in 20—it has no grounds for its unsupported assertion that the tipster’s report in this case gave rise to a reasonable suspicion of drunken driving.

And his ringing conclusion:

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.

• Fernandez v. California, 571 U.S. ___. 134 SC 1126 (14) #12-7822:

This is a case that came out of California, Fernandez, 208 CA4 100, 145 CR3 51 (12). The facts:

Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Roxanne Rojas, who appeared to be battered and bleeding. When the officers asked her to step out of the apartment so that they could conduct a protective sweep, petitioner came to the door and objected.

Suspecting that he had assaulted Rojas, the officers removed petitioner from the apartment and placed him under arrest. He was then identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas’ oral and written consent, searched the premises, where he found several items linking petitioner to the robbery. The trial court denied petitioner’s motion to suppress that evidence, and he was convicted. The California Court of Appeal affirmed. It held that because petitioner was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants pre- sent objects to the search, Georgia v. Randolph, 547 U. S. 103, did not apply, and therefore, petitioner’s suppression motion had been properly denied.

The Supreme Court, 6-3, affirmed. Justice Alito writing for the majority:

Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

The petitioner argued that police motive could result in a co-occupant being removed for the sole purpose of getting consent from the other occupant. The Court refused to put in a subjective test, holding “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.”

But in dissent, Justice Ginsburg wondered, “Does an occupant’s refusal to consent lose force as soon as she absents herself from the doorstep, even if only for a moment? Are the police free to enter the instant after the objector leaves the door to retire for a nap, answer the phone, use the bathroom, or speak to another officer outside? Hypothesized practical considerations, in short, provide no cause for today’s drastic reduction of Randolph’s holding and attendant disregard for the warrant requirement.”

Odor of MJ Plus Pipe With MJ in Bowl Gives P-C For Vehicle Search 

• Waxler, 224 CA4 712, 168 CR3 822 (14): 

Del Norte County Sheriff’s Deputy Richard Griffin learned a person was illegally dumping trash in a parking lot behind a Crescent City Safeway. Deputy Griffin drove to the Safeway and stopped next to appellant’s truck.  Appellant was sitting in the driver’s seat. As Deputy Griffin “got close” to appellant’s truck, he smelled “the odor of burnt marijuana” and “saw a marijuana pipe with . . . what appeared to be burnt marijuana in the bowl.”  The pipe was “on the bench seat right next to” appellant.  Deputy Griffin searched the truck and found a methamphetamine pipe and a small bindle containing suspected methamphetamine with a street value of about $50.

At the prelim Def. argued that the amount of “completely un-smoked marijuana . . . in the bowl” was a “miniscule” 0.3 grams and “was well below the personal limits that are allowed by law.”  He claimed Deputy Griffin’s observation of marijuana in the truck “could not have supported an arrest” because possession of up to 28.5 grams of marijuana is an infraction under section 11357.

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

Both sides cited Strasburg, 148 CA4 1052, 56 CR3 306 (07), which held that observation of a “useable quantity of marijuana . . . in the passenger compartment” of the defendant’s car “provided probable cause for the search of the vehicle’s trunk.”

However, Def. argued that when Strasburg was decided in 2007, marijuana possession was a misdemeanor and now, possession of less than an ounce of marijuana is merely a nonjailable offense.

To which the court utters a collective, So?

Appellant is correct that possession of up to an ounce of marijuana is an infraction, punishable by a fine.  (§ 11357, subd. (b).)  He seems, however, to misunderstand the automobile exception to the warrant requirement. A “warrantless search of an automobile is permissible so long as the police have probable cause to believe the car contains evidence or contraband.”  (Robey, supra, 56 Cal.4th at p. 1225, italics added, citing Chambers v. Maroney (1970) 399 U.S. 42, 48; 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 266, p. 1083.)  

Unlawful Auto Detention Can’t Be Retroactively Cured By Passenger Probation Search Condition

• BATES, 222 CA4 60, 165 CR3 573 (13) #H037910:

Deputy sheriffs responded to a disturbance involving two males and one female. Deputies Skelton and Gidding, as well as other deputies, arrived at the same time and interviewed the three people present. One of the individuals reported that his cell phone had been taken from him. He described the assailant to Deputy Skelton as a black male, just older than high school age, wearing a navy blue shirt, navy blue pants, and a navy blue jacket.  He also told the deputy he had seen the assailant around the area before, and that the assailant’s name might be “Marcus.” The other male present when the deputies arrived was Shelton’s uncle, Michael Lesui, who recited Shelton’s statements that the perpetrator threatened to shoot Shelton if he did not give up his phone and that the perpetrator drove a gold van.

Deputy Fenster, who also responded to the disturbance call, learned that defendant was a felony probationer who matched the general description of the assailant and lived in a nearby apartment complex. After learning defendant’s probation terms included a warrantless search condition, Deputy Fenster directed Deputy Gidding to drive to the apartment complex where defendant lived and to stop the gold van used by defendant’s family if he saw it leave the complex.

Deputy Skelton ultimately informed the other deputies over the radio that a person matching the assailant’s general description was walking west toward a mobile home park. Based on that information and a statement from another deputy that the person walking could be Marcus Bates, Deputy Gidding drove part way through the mobile home park and stopped his patrol car on the side of the park’s single access road.

Within two minutes of Deputy Skelton’s radio broadcast, Deputy Gidding noticed a tan car driving toward the park’s exit.  Deputy Gidding got out of his patrol car and signaled the car to stop.

When Deputy Gidding approached the tan car, he noticed the passenger in the back seat was also a black male. After he told the occupants he was investigating a crime and asked them for identification, the passenger in the back seat identified himself as “Marcus Bates.” He was wearing a blue zip-up hooded jacket, a blue shirt, and blue jeans. Deputy Gidding asked him to get out of the car and placed him in handcuffs.

Defendant moved to suppress all evidence obtained as a result of Deputy Gidding’s stop of the tan car, arguing the stop violated the Fourth Amendment.  The trial court denied the motion.

The Court of Appeals, per Grover, J., reversed.

From these facts, and considering them in light of the totality of the circumstances, we conclude the deputy had no reasonably articulable suspicion that either the occupants of the tan car or the car itself may have been involved in criminal activity.  Instead, it appears Deputy Gidding made the stop based solely on the possibility that the suspect might be riding in the vehicle.  It is logical to assume that a suspect might get into a vehicle to leave the location of a crime and its investigation. Without more, however, that assumption does not rise to the particularized suspicion necessary to detain the vehicle and its occupants.

The People argued that the probation search condition should be applied “retroactively.” The court rejected this argument, distinguishing People v. Durant, 205 CA4 57 (2012):

Unlike the officer in Durant, who stopped a car based on a perceived traffic violation, Deputy Gidding stopped the tan car without any observation of possible wrongdoing. As we discussed previously, Deputy Gidding’s conduct was based on a hunch that defendant might be in the vehicle. Though we do not suggest Deputy Gidding acted in bad faith, we find his suspicionless stop of the tan car nonetheless purposeful for our attenuation analysis. Based on this finding, together with our determination that defendant’s probation search condition was an insufficient attenuating circumstance, we conclude that the evidence obtained as a result of the detention and search should have been suppressed.

Warrantless Cheek Swab for DNA Permissible

[NOTE: Review has been granted by the Cal. Sup. Court. Below opinion is no longer authority]

* Lowe, 221 CA4 1276, 165 CR3 107 (13):

Def. was arrested for a sex crime in 2006 and subjected to a warrantless buccal (inner cheek) swab for DNA.

The DNA profile was subsequently used to convict Def. on several burglary and sex crimes. He appealed, contending that the warrantless swab violated the 4th Amendment and the evidence should have been suppressed.

The Court of Appeal, per Nares, J., affirmed the denial of suppression.

Under Prop. 69, passed in 2004 by the voters of California, a cheek swab is to be taken from all persons arrested for any felony offense. After a lengthy analysis of the factors involved, the court held:

We conclude that the legitimate governmental interests promoted by the warrantless collection of buccal swab DNA samples from felony arrestees who are taken into custody upon probable cause, far outweigh the arrestees’ privacy concerns.  Our conclusion is based on the following five reasons:  The felony arrestee’s diminished privacy interests; the de minimis nature of the physical intrusion involved in the collection of a buccal swab DNA sample; the carefully limited scope of the DNA information that is extracted; the strict limits on the range of permissible uses of the DNA information obtained and the significant criminal penalties imposed upon those who violate those limitations; and the strong law enforcement interests in obtaining arrestees’ identifying information, solving past and future crimes, deterring future criminal acts, and exonerating the innocent. 

Accordingly, we hold that the 2004 Amendment authorizing the mandatory and warrantless collection and analysis of buccal swab DNA samples from felony arrestees does not violate the Fourth Amendment.  Thus, we also conclude the court properly denied Lowe’s suppression motion.

[UPDATE: Review has been granted by Cal. Sup. Ct. Below decision is no longer authority]

• Lester, 220 CA4 291, 162 CR3 907 (13):

A 911 caller reported four to five female subjects near a red car who were yelling and screaming and possibly going to engage in a physical fight. When the officer arrived after some delay, he saw that there was no red car outside.

Defendant and codefendant walked out of the more eastern of two apartments, which was attached to the 911 caller’s apartment. The officer asked the men what was going on.

The codefendant said, “There is a problem with my baby mama, but it’s all right now.” The defendant and codefendant were detained by two of the five other officers and sat down at the curb, because it was suspected that they were involved in the disturbance that caused the 911 call.

The officer knocked on the door of the Apt. to see if any of the females involved in the disturbance were there, but there was no answer. He opened the door, which was not locked, and announced himself, then entered in order to find the females and ensure that there was not a physical fight and they were not injured.  He immediately detected the strong smell of marijuana.

No one was inside.  However, he saw, in plain sight, suspected marijuana and cocaine.

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

Applying the reasoning in Troyer [51 Cal.4th 599 (11)], we note that the 911 caller believed the four to five female subjects were going to have a fight and the officer had been delayed in his arrival at the apartment.  The four to five females were not present, nor was the car associated with them.  However, defendant and the codefendant walked out of the apartment that was the source of the disturbance.  The codefendant confirmed that there had, indeed, been a “problem,” and the officer was free to disbelieve his representation that everything was now all right.  The 911 caller confirmed to the officer that a “large fight” had taken place at the apartment.  No one answered the door at the apartment and the officer entered to find the females and make sure that none were injured.  We agree with the trial court that these circumstances created a reasonable basis for the officer to believe that the females were in the apartment and in need of immediate aid.

• Leath, 217 CA4 344, 158 CR3 449 (13):

Police officers spoke to three victims of a robbery. They said they had been walking home when a dark SUV came towards them. The person on the passenger side of the SUV got out first, approached, pointed a gun, and said, “Give me your stuff.”  Female handed over her purse.  Her friends ran towards her to see what was going on, and the suspects “pocket checked” them at gunpoint. The suspects then said, “Four-Eighth Street. Start running.” Four-Eighth is a street gang unit of the Rollin’ 40’s.

The victims described the perps as approximately 20 years of age. One suspect was wearing a blue Cardinals jacket. The victims said the SUV was either burgundy or dark in color. They were not able to otherwise describe the SUV.

The officers spotted the SUV nearby, with the passenger door open. Off. detained Def, who was walking away. Asked if it was his SUV, and he said, “Yes.” Off. then asked for ID, and the Def. gave it to him. They ran his name and discovered outstanding warrants, and arrested him.

His motion to suppress was denied, and the Court of Appeal, per Suzukawa, J., affirmed.

In the present case, the trial court concluded that defendant voluntarily complied with the officers’ request for identification.  This conclusion is supported by substantial evidence.  The officers did not accuse defendant of any illegal activity when they first addressed him—they merely told him his car door was open and asked if the car belonged to him.  They then asked for—but did not demand—identification.  There is no evidence that the officers used or threatened defendant with any physical force.  Nor is there any evidence that, had defendant asked the officers to return his identification card to him, they would not have complied.  Thus, the record supports the trial court’s conclusion that a reasonable person in defendant’s situation would have felt free to leave.

Handcuffing Defendant at Gunpoint Was Not De Facto Arrest

• Turner, 219 CA4 151, 161 CR3 567 (13):

After a high school football game, head coach Rafael Ward, and several other coaches, were accompanying their families to their cars for their protection because of a threat by defendant Ronald Henderson Turner, a parent of one of the players. Defendant called one of the coaches a racial slur and then said, “I’ll see you after the game.” Coach Ward told Lawrence Fenton, an off-duty probation officer providing security at the game, about the threat and that defendant had said he was going to carry out his threat after the game. A short time later, Ward told Officer Fenton that he (Ward) had learned from his aunt (who had heard it from an acquaintance of defendant) that defendant “had a gun on him.”  Officer Fenton called Salinas police for backup.  His partner who was with him, Steve Hinze (also an off-duty probation officer), located defendant and (with the police) detained him at or next to the parking lot outside the stadium. Defendant was handcuffed at gunpoint while officers determined whether he was armed. After admitting to a police officer that he had a gun, the police located a loaded revolver concealed on his person, and he was arrested.

After the denial of defendant’s 1538.5 motion, he pleaded no contest to possession of a firearm in a school zone. The court suspended defendant’s sentence and placed him on felony probation under various terms and conditions, including the condition that he serve 250 days in county jail.

Defendant’s motion to suppress involved dual, alternative contentions.  First, defendant argued that the officers’ action of handcuffing him at gunpoint was not a detention for which they would have needed a reasonable suspicion of criminal activity; rather, it constituted a de facto arrest, and the officers had no probable cause that defendant had committed a crime. Second, that even if he was not arrested, his detention was unlawful because the detaining officers did not have specific articulable facts upon which they could have reasonably suspected that he was involved in illegal activity.

A. There Was No De Facto Arrest

A detention at gunpoint is a factor that obviously increases its intrusiveness; in some instances, this factor may result in the encounter being deemed an arrest that must be supported by probable cause, while in other instances, it may be found an appropriate element of the detention.  (People v. Glaser (1995) 11 Cal.4th 354, 366.)  Similarly, handcuffing a suspect does not necessarily convert a detention into a de facto arrest.  (Celis, supra, 33 Cal.4th at p. 675; see also In re Antonio B. (2008) 166 Cal.App.4th 435, 441.) 

Here, there were “articulable facts upon which the officers reasonably concluded that defendant was armed.”

B. The Detention Was Reasonable

We acknowledge that the intrusion to defendant in being publicly detained and handcuffed at gunpoint may have been greater than the traffic stop at issue in Wells, supra, 38 Cal.4th 1078.  But the intrusiveness of the stop is only one of the factors to consider in determining whether the detention was reasonable, as seen, for example, in Dolly, where the defendant was ordered out of his car located on a city street in the middle of the afternoon and instructed to lie down in the street with his hands at his side.  (Dolly, supra, 40 Cal.4th at p. 462.)   

The court distinguished the information provided in Florida v. J.L. 529 U.S. 266 (00):

Unlike in J.L., this is not a case in which the original tipster’s identity is unknown and he or she therefore cannot be held accountable to the police.  The informant here was Ward, who told Officer Fenton (in Officer Hinze’s presence) that his aunt “knew someone who knew [defendant] and said he had a gun on him.”  Thus, although the ultimate source that defendant was armed was not disclosed, Ward, unlike the anonymous tipster in J.L., was a known individual communicating the tip.  He—like a known informant providing a tip to the police—had a “reputation [that could] be assessed and who [could] be held responsible if [his] allegations turn out to be fabricated.”  (Id. at p. 270; see also id. at p. 276 (conc. opn. of Stevens, J.) [where “informant places his anonymity at risk,” court may consider this factor in assessing tip’s reliability].)  Thus, we are not faced here with the inherent unreliability “of an unknown, unaccountable informant” as found in J.L. (id. at p. 271).  Further, the tip concerned a named individual, defendant, whereas the suspect in J.L. was described as a young Black male wearing a plaid shirt.  (Id. at p. 268.)