Bell's Compendium

• McWILLIAMS, __ C5 ___, ___ CR3 ___, ___ P3 ___ (22) #S268320:

Responding to a report of suspicious activity in the area, a police officer unlawfully detained a bystander in a parked car, who had no apparent connection to the report. The officer ran a records search and learned that the bystander, McWilliams, was on parole and subject to warrantless, suspicionless parole searches. The officer proceeded to search McWilliams and his vehicle, where the officer found an unloaded gun, ammunition, drugs, and drug paraphernalia.

As a general rule, evidence seized as a result of an unlawful search or seizure is inadmissible against the defendant in a subsequent prosecution. But the law permits use of the evidence when the causal connection “between the lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’” (Wong Sun v. United States (1963) 371 U.S. 471, 487.)

The Court of Appeal held that the officer’s discovery of McWilliams’s parole search condition sufficiently attenuated the connection between the unlawful detention and the contraband found in McWilliams’s vehicle.

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

In conducting an attenuation inquiry, the court relies on the three factors set out in Brown v. Illinois (1975) 422 U.S. 590, 603–604:

(1) the “temporal proximity” between the unlawful conduct and the discovery of evidence;

(2) the “presence of intervening circumstances”;

(3) the “purpose and flagrancy of the official misconduct.”

Once the defendant establishes a Fourth Amendment violation, the prosecution bears the burden of establishing admissibility under this exception to the exclusionary rule.

The court spends a good portion of the opinion distinguishing this case from the U.S. Supreme Court’s decision in Strieff, 579 U.S. 232 (16), wherein it was held that discovery of an outstanding arrest warrant after an illegal detention constituted adequate “attenuation.”

The court holds:

No substantial time passed between Officer Croucher’s illegal detention of McWilliams and his seizure of the evidence in this case. Officer Croucher’s subsequent discovery of McWilliams’s parole search condition, and his discretionary decision to conduct the parole search, did little to attenuate the connection between the unlawful stop and the evidence. And Officer Croucher’s decision to conduct the stop, without any evident basis to believe McWilliams was connected to the activity Officer Croucher set out to investigate, indicates a purposefulness that further justifies the exclusion of the evidence.

Note: The following case was cited by the People:

Durant, 205 CA4 57, 140 CR3 103 (12): Illegal traffic stop. Off. then recognized Def. as being on probation. Patdown found firearm. Supp. Den. Aff. Probation search condition attenuated taint of illegal stop.

Footnote 5 of the McWILLIAMS opinion reads:

Although People v. Durant, supra, 205 Cal.App.4th 57, found attenuation on a different set of facts, we disapprove the opinion to the extent its reasoning is inconsistent with this opinion.

Bottom of page 153, top of 154 of the print version of Bell’s should now have this revised section:

And valid search condition may “remove the taint” of an illegal auto stop: 

Strieff, 579 US ___, 136 SC 2056, 195 LE2 400 (16) #14–1373: Off. stopped Def. on suspicion of drug activity, demanded ID. Ran check. Outstanding warrant. Arrest. Meth and drug paraphernalia. Held, stop was unlawful, but valid warrant “attenuated” the connection. Evidence admissible. DISS: Sotomayor.

But cf. McWILLIAMS, __ C5 ___, ___ CR3 ___, ___ P3 ___ (22) #S268320: Illegal detention of passenger in parked car. Record check revealed probation. Off. “discretionary decision” to search was not sufficient attenuation. To that extent, disapproves of Durant, below.

*Durant, 205 CA4 57, 140 CR3 103 (12): Illegal traffic stop. Off. then recognized Def. as being on probation. Patdown found firearm. Supp. Den. Aff. Probation search condition attenuated taint of illegal stop. 
*[Disapproved by McWILLIAMS]

• Salvador, 83 CA5 57, 299 CR3 266 (22) #H048162:

Salvador pleaded no contest to felony false imprisonment and misdemeanor sexual battery. The trial court granted a three-year term of probation and imposed, among others, conditions requiring Salvador to consent to searches of his electronic devices, and restricting his use of social media and the Internet.

Salvador challenged the probation conditions allowing for searches of his electronic devices and restricting his use of social media and the Internet. He argued the conditions were invalid under People v. Lent (1975) 15 Cal.3d 481, and are overbroad in violation of his rights under the First and Fourth Amendments.

The Court of Appeal, per Greenwood, PJ, held that all the conditions were valid except that restricting Internet use.

A condition of probation will not be held invalid unless it: (1) has no relationship to the crime of which the offender was convicted; (2) relates to conduct which is not in itself criminal; and (3) requires or forbids conduct which is not reasonably related to future criminality. People v. Lent, (1975) 15 Cal.3d 481.

All three prongs of the Lent test must be found before a reviewing court will invalidate the condition. The third prong, relating to future criminality, “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” In re Ricardo P. (2019) 7 Cal.5th 1113. This prong “requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.)

The Attorney General argued that all the conditions were valid under People v. Pirali (2013) 217 Cal.App.4th 1341. But with respect to Internet access, the court stated:

Since [Pirali], the Internet has become even more central and commonplace in the lives of ordinary people; it is now practically unavoidable in daily life. Many more people today use the Internet to work from home, follow the news, or conduct business and commercial transactions such as banking and paying bills. No valid purpose is served by preventing Salvador from engaging in the kinds of Internet access that have become common and ubiquitous—e.g., performing work-related tasks, accessing or commenting on news sites, or conducting commercial or business transactions in ways that require engaging in protected speech. We conclude the limitation we relied on in Pirali—that the probationer could still use the Internet by obtaining prior approval from his probation officer—is not adequate here. Access to some part of the Internet is so necessary and frequent as a part of daily life that it may become unduly burdensome to obtain a probation officer’s approval for every use of it.

More on “Totality of Circumstances” for a Patdown

Back in may we summarized PANTOJA, 77 CA5 483, 299 CR3 85 (22). Recall that in a “high crime area” the officer stopped a silver Dodge for non-working brake and license plate lights. He recognized defendant and knew he “had a history of violence and firearm possession, and he was at the time an investigative lead in a homicide.” He saw no signs defendant was intoxicated. He asked if there was “weed” in the car, and defendant said he did not smoke weed. He asked defendant if he could take a look in the vehicle for contraband, and defendant said no.

The officer ordered defendant out. Defendant was wearing “baggy” clothes and a hoodie. The officer lifted the front of the hoodie and found a revolver.

Suppression affirmed. To justify a pat search for weapons an officer must have a “reasonable suspicion” the detainee may be armed and dangerous. Terry v. Ohio, 392 US 1 (68).

The officer was asked whether he believed defendant was armed or dangerous. He cited defendant’s baggy clothing that “naturally has bulges in it”; and “defendant’s history of weapons” as reasons to pat him down. But when he was asked, “Did you believe he was presently armed and dangerous?” the officer responded, “There’s a good possibility or chance, yes.”

The trial court found this response an indication that the officer’s belief was “all speculative, and he didn’t have any specific or articulable facts to believe that this individual was presently armed or dangerous.” The Court of Appeal affirmed.

Pantoja is distinguished in an unpublished opinion, which I discuss here to remind us that “totality of circumstances” is a grab-bag standard with variables all along the way. This portion of In re Juan A. (2022 WL 15117113, Oct. 27, 2022) is illustrative:

Pantoja is distinguishable from this case. Morales, unlike the officer in Pantoja, immediately conducted a patdown search of Gabriel upon approaching him. Gabriel, unlike the defendant in Pantoja, was not present at his apartment building that happened to be situated in a high crime area. Rather, he was purposefully visiting a memorial site that had particular significance to the Linda Vista 13 criminal street gang, a location known to draw acts of violence. Gabriel was paying respects to the deceased Linda Vista 13 gang member, an activity that increased the likelihood he would arm himself for protection. Unlike Pantoja, in which the defendant’s arrest history was stale, Morales testified to facts indicating there had been shootings at the memorial site within the preceding six months. Accordingly, Gabriel’s citation to Pantoja does not persuade us that his detention and patdown search were unreasonable.

Drones and the 4th Amendment

“Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security.”

So begins the decision in RaceDayQuads,LLC v. FAA, No. 21-1087 (D.C. Cir. Jul. 29, 2022). The case involved a newly adopted FAA rule requiring drones to carry a “Remote ID.”

Remote ID technology requires drones in flight to emit publicly readable radio signals reflecting certain identifying Information, including their serial number, location, and performance information. Those signals can be received, and the Remote ID information read, by smart phones and similar devices using a downloadable application available to the FAA, government entities, and members of the public, including other aircraft operators. The FAA likens Remote ID to a “digital license plate.”

Tyler Brennan, CEO of RaceDayQuads (“a one-stop drone shop”) moved for review and vacatur of the rule. He argued that the location tracking required by the Remote ID Rule infringes a drone operator’s reasonable expectation of privacy, and thus constitutes a warrantless search in violation of the Fourth Amendment.

The court held:

His request for vacatur of the Rule, amounting to a facial challenge, must fail because drones are virtually always flown in public. Requiring a drone to show its location and that of its operator while the drone is aloft in the open air violates no reasonable expectation of privacy. Brennan hypothesizes that law enforcement authorities could use Remote ID to carry out continuous surveillance of drone pilots’ public locations amounting to a constitutionally cognizable search, or that the Rule could be applied in ways that would reveal an operator’s identity and location at a home or in an otherwise private place. But he has not shown that any such uses of Remote ID have either harmed him or imminently will do so, thus he presents no currently justiciable, as-applied challenge.

• Rowland, ___ CA5 ___, ___ CR3 ___ (22) #H048799:

Two anonymous “cybertips” came to the National Center for Missing and Exploited Children (NCMEC). They came from a Microsoft Online Operation employee who viewed two files of apparent child pornography. The cybertip provided the IP address of the computer used to upload the images. The IP was attached to the company AT&T Mobility.

A Los Altos PD detective, Nava, authored a search warrant for the subscriber information and found the name “Richard Rowland” with an address in Los Altos. Surveillance determined the Rowland, aged 84, lived there with his son, Jeffrey, 37.

A search warrant was issued for the residence and two cars on the premises. The following items were seized: two Western Digital storage devices, a Dell tower computer, a PNY thumb drive, an Apple iPhone, an Apple laptop, and an Apple computer. The PNY thumb drive “contained an estimated 1,000 images of child pornography and 25 videos of child pornography.”

In his motion to quash the search warrant, Def. Jeffrey Rowland claimed that the search warrant affidavit failed to state probable cause. He argued the showing was defective because: “The only information in the affidavit linking the contraband to defendant is based entirely on an uncorroborated anonymous tip.” And: “The information linking the images to defendant’s address was four months old, rendering it stale.” Rowland further asserted that “the search warrant affidavit, on its face, is so lacking in probable cause that it cannot even meet the minimum standards of the ‘good faith’ rule.” Rowland urged the trial court to quash the search warrant and suppress the evidence seized, as well as any “statements and derivative evidence.”

The court denied his motion to quash. The Court of Appeal, per Danner, Acting P.J., affirmed.

Although no California court has issued a published decision examining the reliability and credibility of service providers and NCMEC with regard to their reports of child pornography, one federal court of appeals recently “h[e]ld that an NCMEC cyber-tip generated by information provided to NCMEC by an internet company such as Google carries with it significant indicia of reliability. The [relevant federal law] imbues such significant reliability by mandating ‘electronic communication service provider[s] [and] remote computing service[s]’ to report illicit, questionable activity that comes through their servers.” (United States v. Landreneau (5th Cir. 2020) 967 F.3d 443, 453.)

***

Because we conclude the search warrant affidavit demonstrated a fair probability that a search would uncover wrongdoing, there is no need to examine whether the good faith exception to the exclusionary rule applies.

• AYON, ___ CA5 ___, ___ CR3 ___ (22) #H047360:

Ayon was driving in San Jose around 9:00 p.m. when he was stopped for a traffic violation. The police took his license and registration, and transmitted it to a dispatcher. About three and a half minutes into the stop, police ordered Ayon out of the car and patted him down. The dispatch came back on the license and registration. Both valid.

Officer asked Ayon for consent to search his car. Ayon refused. The officer handcuffed Ayon and told him he was detaining him “for my safety because of the way you’re acting.” After Ayon objected to being handcuffed for a traffic infraction, the officer again asserted he handcuffed Ayon for “officer safety because you’re being very aggressive.” The police then called for a dope-sniffing dog. It arrived almost thirteen minutes into the stop.

The dog alerted. police searched the car and found $6,200 hidden in a compartment under the driver’s side of the dashboard. An officer then discovered a secret compartment under the back seat of the car. The compartment had been designed to be opened with a secret switch, and the officer could not find the switch during the initial stop.

All this was captured on the body cams of the officers.

After taking Ayon into custody, the police took the car to the department garage, where they forced the compartment open. Inside, they found 1,132 grams of cocaine; 73.5 grams of methamphetamine; and an additional $10,000 in currency. The police never obtained any warrants for the search or arrest.

Ayon moves to suppress the evidence. Denied. The court found that under the totality of the circumstances, the police did not unduly or unreasonably prolong the detention. The court found “the officer’s actions were objectively reasonable under the circumstances of this particular case” and “the time spent interacting with the defendant before the dog determined probable cause” was objectively reasonable to pursue “legitimate investigative pursuits.”

The Court of Appeal, Per. Greenwood, P.J., reversed.

“A seizure for a traffic violation justifies a police investigation of that violation.” (Rodriguez v. U.S. (2015) 575 U.S. 348, 354 (Rodriguez).) A traffic stop begins once the vehicle is pulled over for investigation of the traffic violation. (People v. McDaniel (2021) 12 Cal.5th 97, 130.)

Because the traffic violation is the purpose of the stop, the stop “may ‘last no longer than is necessary to effectuate th[at] purpose.’ [Citation.]” (Rodriguez, supra, 575 U.S. at p. 354.) “[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, [citation] and attend to related safety concerns.” (Ibid.) “A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”

A part of the justification for prolonging the detention, the Officer alleged that Ayon was acting in a “hostile,” “aggressive,” “confrontational,” and “strange” manner. He blamed Ayon for prolonging the stop and claimed he suspected Ayon was using drugs based on this asserted behavior. He testified that he ordered the narcotics dog after he became suspicious that Ayon was under the influence of something.

But, as Warner Wolf used to say, “Let’s go to the videotape!”

[T] video shows Officer Williams requested a narcotics dog before conducting any purported sobriety checks, and the dog handler admitted he had been informed his presence would be required before the stop had even occurred. And Ayon’s conduct as documented by the videos is at odds with Officer Williams’s testimony. Although Ayon questioned why the police would ask to search his car and handcuff him in a routine stop for a traffic infraction, he was cooperative at all times. He showed no signs of hostility or aggression.

Reports of Miranda’s Death Have Been Greatly Exaggerated

On June 23 the Supreme Court released its opinion in Vega v. Tekoh, Docket #21-499. As summarized on SCOTUSblog:

During a March 2014 custodial interrogation of Terence Tekoh at his workplace regarding sexual assault allegations, Los Angeles County Sheriff’s Deputy Carlos Vega failed to give Tekoh a Miranda warning. Vega emerged from that interrogation with Tekoh’s handwritten statement that offered an apology for inappropriately touching the complainant. Tekoh was subsequently prosecuted for the alleged sexual assault, and at Tekoh’s criminal trial, the government introduced his un-Mirandized statement. The jury found Tekoh not guilty.

Tekoh then sued Vega and other defendants for civil damages, alleging that, per Miranda, the custodial interrogation violated his Fifth Amendment right against compelled self-incrimination. The U.S. Court of Appeals for the 9th Circuit agreed with Tekoh and held that the government’s use of the un-Mirandized statement provided a basis upon which Tekoh could seek civil damages under Section 1983.

The Supreme Court rejected the 9th Circuit’s decision.

According to the majority opinion written by Justice Samuel Alito (and joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett):

Miranda did not hold that a violation of the rules it established necessarily constitute a Fifth Amendment violation, and it is difficult to see how it could have held otherwise. For one thing, it is easy to imagine many situations in which an un-Mirandized suspect in custody may make self-incriminating statements without any hint of compulsion. In addition, the warnings that the Court required included components, such as notification of the right to have retained or appointed counsel present during questioning, that do not concern self-incrimination per se but are instead plainly designed to safeguard that right. And the same is true of Miranda’s detailed rules about the waiver of the right to remain silent and the right to an attorney. [Mirand] 384 U. S., at 474–479.

At no point in the opinion did the Court state that a violation of its new rules constituted a violation of the Fifth Amendment right against compelled self-incrimination. Instead, it claimed only that those rules were needed to safeguard that right during custodial interrogation.

The conclusion over at SCTOUSblog is dire:

Miranda, one of the increasingly few cultural and court canons that binds us, has been injured, perhaps fatally. What it stood to protect, the Fifth Amendment, now stands before us, newly naked, stripped of its heretofore powerful prophylactic. And in too many quarters, its rules are meant to be broken.

However, according to the ever-quotable Al Menaster of the L.A. Public Defender’s Appellate Branch:

The news headlines are, US Supreme Court Guts Miranda. NO. The court did NOT overrule or even undermine Miranda. All the court held, read slowly, is, “The question we must decide is whether a violation of the Miranda rules provides a basis for a claim under §1983. We hold that it does not.”  To repeat.  A violation of Miranda does not allow a lawsuit under section 1983 for civil damages. The court does NOT say that evidence obtained in violation of Miranda is admissible in a criminal case. “Miranda rests on a pragmatic judgment about what is needed to stop the violation at trial of the Fifth Amendment right against compelled self-incrimination. That prophylactic purpose is served by the suppression at trial of statements obtained in violation of Miranda.”

Continue to make motions to suppress under Miranda. Nothing changed on that point.

• RORABAUGH, 74 CA5 296, 289 CR3 393 (22) #C090482:

While executing a search warrant at Def’s home, police learned that one of his cars was a short distance away, at a ranch owned by one Christensen. Police went to the ranch and towed the car away to be stored until they could obtain a warrant to search it.

Later, the trial court denied Def’s 1538.5 motion to suppress DNA evidence found in the car. He was found guilty of first degree murder, with a sentence of 25 to life.

The Court of Appeal, per Hoch, J., reversed and remanded.

Def’s motion argued that a “warrantless seizure of the car from private property where it was rightly stored” violated the Fourth Amendment, as explained in Coolidge v. New Hampshire (1971) 403 U.S. 443. He argued that officers “could easily have adapted the warrants” they had already obtained “for the seizure of the car. But instead they chose to go behind the warrant requirement of the Fourth Amendment and conduct their own extra-judicial procedure without the signature of a neutral and detached magistrate.”

The People argued that the seizure of the car was well within the automobile exception as developed by the Supreme Court after Coolidge, which holds that officers can search a car independent of the detention or arrest of a defendant when there is probable cause to believe the vehicle contains evidence of a crime.

The Court’s held as follows:

If (a) police do not have an otherwise lawful right of access to an unattended car on private property, and (b) it is not impracticable to obtain a warrant, then (c) warrantless seizure of the car accomplished by trespassing on private property (and subsequently searching the car at another location) is a violation of the Fourth Amendment, and does not fall within the automobile exception, even if there is probable cause to search it.

In answer to the People’s arguments:

The People attempt to distinguish Coolidge, arguing “the record shows that it was not practicable for the police to secure a warrant before seizing the vehicle.” The record shows no such thing. We can discern no way in which it would have been impracticable to return to the judge who authorized the search warrant in order to obtain authorization to seize the car sitting on Christensen’s land.

The People’s contention that the car was “readily mobile” also lacks support in the record. The People concede for purposes of the Fourth Amendment issue that defendant had already been arrested at his home, and was in custody before police towed the car, and Christensen did not have a key to the car.

Cases the People rely on in supplemental briefing are distinguishable. Florida v. White (1999) 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed.2d 748 was a case about warrantless seizure of a car, where “the vehicle itself was contraband under” state law. (Id. at p. 565, 119 S.Ct. 1555.) No such principle applies here. Further, the high court emphasized that the warrantless seizure at issue occurred in a “public area,” whereas here, the car was on private property.

Your Humble Editor Has Written a Book

It being a rather light update this time around, may I offer a small commercial?

Some of you remember my dad, Art Bell, a great L.A. lawyer who conceived and operated Bell’s Compendium for 20 years. I was able to work with him for a couple of years before he died, enabling me to carry on his work.

Dad grew up in Hollywood, next door to Joel McCrea and across the street from Jason Robards. He went to Hollywood High, then UCLA (where he played baseball alongside Jackie Robinson). In the 30s, to make some money, he became an extra for the movie industry. He joined the Screen Extras Guild and went out on dozens of calls.

One of them was for a Civil War movie. You may recall Gone With the Wind. Remember the scene at the train station, where Scarlett has to wade through the entire yard filled with wounded and dying soldiers? Then you saw my dad (somewhere!) He later told me the dead soldiers were dummies, so at least he got a meatier role.

When he returned from World War II he grabbed a few more extra roles, one of them being in the enduring classic The Best Years of Our Lives.

Then he settled with his wife and two sons (I was not yet in the picture) in Woodland Hills, went to law school at USC, and began the practice of law. When I picture my dad in those days, I always see him in black and white, wearing a fedora.

That’s whey I’ve always been a fan of movies set in the 1940s and 50s. I’m especially fond of film noir from that era.

I’m also a fan of classic pulp fiction, crime and detective stories that grabbed readers from the start and held them to the end. Turns out Dad was a friend of one of those writers from the Golden Age, W. T. Ballard. Ballard wrote for the fabled Black Mask pulp magazine, alongside people like Dashiell Hammett and Raymond Chandler. A series character Ballard created was Bill Lennox, a “troubleshooter” for a Hollywood studio. I liked those stories, and one day decided to try my hand at one featuring a troubleshooter named William “Wild Bill” Armbrewster. I set the story in 1945 Hollywood, just after the war ended.

It turned into a “novelette”, a popular pulp length that’s, well, more than a short story and less than a novella (which is less than a novel!) Then I wrote another and another…until I had six of them. I gave them to a select group of readers and got back rave reviews.

So I’m publishing them all in a book called TROUBLE IS MY BEAT. Here’s the blurb:

Bill Armbrewster is the troubleshooter for National-Consolidated Pictures. That means getting leading men out of the drunk tank … or a murder rap. It means keeping wolves away from starlets and dancers away from temptation. Once it even means helping Bette Davis out of a jam.

From City Hall to the Sunset Strip—and all points in between—William “Wild Bill” Armbrewster, a Marine who fought in France in the first World War, gets between the studio talent and a raft of swindlers and hooligans, killers and thieves.

Fair warning: Don’t get on his bad side.

The ebook version is available for pre-order on Amazon for the deal price of $2.99 (a print version will come out later). You can place your order now by going HERE.

I thank you for your kind indulgence!

• BLAKES, 72 CA5 904, ___ CR3 ___ (21) #C093856:

Sacramento County Sheriff’s Deputies were assigned to the gang suppression unit. They spotted a gold Chevy Impala with tinted windows. Driving behind the Impala, they ran a records check and determined the Impala was owned and being driven by Def., whose license was suspended.

They initiated a traffic stop based on the window tint violation and driving with a suspended license. Def. drove for about one-tenth of a mile before pulling over into a parking lot and legally parking. Addressing Def. the deputies smelled the odor of marijuana.

They ordered Def. out and pat searched him, finding nothing. They then ordered an impound tow and proceeded to search the car as “incident to a tow.”

They found a burnt marijuana cigarette sticking out of the trash receptacle in the center console, a digital scale with green and white residue on top, and prescription bottles were in the center console. On the floorboard there was a glass jar which contained marijuana with at least one bag tied in a knot. An empty handgun holster was found in the back seat. When shown the holster and asked if there was a gun in the car, Def. said he knew nothing about the holster or any gun. A handgun was found on the rear driver’s side seat. Also in the car was a black backpack containing different identification cards, driver’s licenses, and credit cards.

Def. was arrested and put in handcuffs after the gun was found. The Impala was towed.

Petitioner was charged with felon in possession of a firearm, driving without a valid license, possession of a controlled substance, along with a serious felony and a strike allegation.

Def’s 1538.5 motion was denied. The Court of Appeal, per Blease, Acting P.J., reverses.

Prop 64 legalized the possession of up to 28.5 grams of cannabis by individuals 21 years or older. It does not apply when the totality of the circumstances gives rise to a fair probability that an existing cannabis regulation was violated when the search occurred. In this case, two potential violations were possible: DUI MJ and driving with an open container of MJ.

The evidence adduced at the suppression hearing does not carry the People’s burden of proving probable cause to justify the warrantless search. The prosecution presented no evidence that petitioner was impaired; no sobriety test was administered, there was no evidence petitioner drove erratically before the stop, and neither detective testified to observing any indicia of petitioner being intoxicated. Likewise, there was no evidence either detective observed an open container before petitioner’s car was searched.

The fact that there was a smell of burnt marijuana emanating from the car was insufficient to support either theory of probable cause in this case. Neither detective could determine if the marijuana was freshly burnt, removing any support for an inference that petitioner was smoking the marijuana while driving. As we found in Johnson, “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.’ [Citation.]” (People v. Johnson, supra, 50 Cal.App.5th at p. 635.)

The Court also held that the impound search was a pretext:

What is not present is an adequate community caretaking function served by the impound here. There was no evidence petitioner’s car blocked traffic or was at risk of theft or vandalism; the Impala was legally parked in a parking space in a public parking lot. Although the detectives testified it was common (and thus part of the policy) to tow when the driver had a suspended license to prevent more driving under a suspended license, this policy does not provide a community caretaking function for the tow. The detectives did not afford petitioner the opportunity to call someone to drive his car to another location. More importantly, the evidence shows the impound decision was motivated by an investigatory purpose.

Blood Draw of Unconscious DUI Suspect Upheld

• Nault, ___ CA5 ___, ___ CR3 ___ (21) #B306460:

Def. tried to pass an 18-wheeler on a stretch of two-lane highway. He crashed into a Honda Civic, killing the driver. Both cars burst into flames.

When CHP arrived Def. was already in an ambulance, semi-conscious, smelling of alcohol. Medical personnel were giving him oxygen and intravenous fluids. The Off. went to get a breathalyzer from his cruiser. When he returned, medics were moving Def. to a helicopter for emergency evacuation.

Another Off. went to the hospital and found Def. unconscious and about to go into surgery. He asked a nurse to draw blood. Two samples were drawn and came up 0.14 BAC. Def. was convicted of second degree murder and gross vehicular manslaughter while intoxicated. His motion to suppress the blood evidence was denied.

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

McNEELY, 569 US 141 (13) held that a warrantless blood draw is presumed unreasonable unless justified by a recognized exception. One such exception is exigent circumstances, which arise when an emergency makes law enforcement needs so compelling that a warrantless search is objectively reasonable.

Subsequently, in Mitchell, 139 SC 2525 (19), the Court held that when a driver is unconscious, the Fourth Amendment “almost always” permits a warrantless blood draw when police officers do not have a reasonable opportunity for a breath test before hospitalization.

The court here rules that Mitchell applies. Def. cited MEZA, 23 CA5 604 (18), where a warrantless draw at the hospital was improper without a warrant. But “Meza was pre-Mitchell. There was no airlift of an unconscious person.”

Good Faith Reliance on Invalidated Precedent

This case came back to Cal on remand after the U.S. Supreme Court invalidated the warrantless pursuit of a misdemeanant in LANGE, 594 US ___, 141 SC 2011, 210 LE2 486 (21).

This time, the CA upholds the search because the CHP officer could have relied in good faith on Cal precedent that LANGE invalidated.

Here, Officer Weikert may not properly be charged with knowledge that his warrantless entry into defendant’s home violated the Fourth Amendment given that multiple California cases—good law at the time—authorized warrantless entry in cases, such as this one, involving the hot pursuit of a fleeing misdemeanant.

• CUADRA, ___ CA5 ___, ___ CR3 ___ (21) #B310554:

On June 3, 2020, at 2:15 a.m., Deputy Sheriff Xavier Zeas and his partner drove their patrol car into the Destiny Inn parking lot in the City of Commerce and stopped next to a parked car near where Def. was standing.

Because of Black Lives Matter protests, there was a curfew in effect. From inside the patrol car, Deputy Zeas asked Def. if he was aware of the curfew. Def. said No. Deputy Zeas then asked appellant if he was on parole or probation. Def. said he was on probation.

The two officers exited their patrol car and asked Def. to walk over to the hood of the patrol vehicle. Def. raised his hands and stepped backward, away from the patrol car. He asked why the officers were “attempting to detain” him, as he had done nothing wrong.

Because Def. had his hands up, Deputy Zeas saw an unidentified “bulge” in Def’s right front pants pocket. The bulge was “pretty big” and consistent with the shape of a firearm. At this point Def. told them he had a gun.

At that point Deputy Zeas ordered Def. to the ground. He complied and Deputy Zeas performed a pat down search, recovering a loaded .38 caliber revolver from appellant’s right front pants pocket. After entertaining argument, the trial court denied the motion.

In a 2–1 decision, the Court of Appeal, per Stratton, J., reversed. The question was whether there was a sufficient “show of authority” to turn this encounter into an unlawful detention.

Instructions to put one’s hands on the hood of a car has been deemed a show of authority. (U.S. v. Brodie (D.C. Cir. 2014) 742 F.3d 1058, 1061; U.S. v. Brown, supra, 401 F.3d at p. 595.) By his own testimony, Deputy Zeas began the detention process when he “asked” appellant to come toward the hood of the patrol car. Hearing those words, whether as a “request” or an “order,” no reasonable person would feel free to leave.

***

Nevertheless, relying on California v. Hodari D., the People argue there was no detention because appellant did not actually submit to the officers’ show of authority. Instead, he raised his arms and stepped back, conduct which the People contend is noncompliance. We disagree. Generally, people do not put up both hands and step back while still facing the police if they believe they can just walk away. They walk away. Raising one’s hands and stepping back is a universally acknowledged submission to authority.

***

The observation of the bulge in appellant’s pocket occurred as a result of appellant’s submission to authority. As Deputy Zeas put it, “when he raised his hands in the air, that revealed a bulge in his front right pants pocket.”

We conclude that there was neither probable cause to arrest appellant but for the illegal detention, nor was this a consensual encounter after the officers directed appellant to the hood of the car. As for a brief investigatory stop under Terry v. Ohio, there must be an objective manifestation of a reasonable articulable suspicion that cri minal activity is afoot and that appellant was a person engaged in, or about to engage in, criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 230.) Here there was neither. All the officers knew was that appellant was standing next to a car in a motel parking lot at 2:00 a.m. … Under the totality of circumstances, we conclude appellant submitted to a show of authority and his detention was not founded on reasonable suspicion, consent, or probable cause to arrest. The stop does not pass constitutional muster and the revolver seized as a result of the search should have been suppressed.

Does a question tug at your mind? A question such as: Why wasn’t this a valid probation search?

The majority took care of this with one line:

And without knowing whether defendant’s grant of probation included a search condition, the officers could not ultimately stop and search him as they did. (In re Jaime P. (2006) 40 Cal.4th 128, 139.)

In dissent, Grimes, Act. P.J., wrote:

More to the point, however, I do not agree with the majority that the deputies did in fact detain defendant when they got out of the patrol car and asked defendant to come toward the front of the patrol car. Defendant did not do so. Rather, defendant raised his hands in the air and started backing away from the deputies, asking why they were “attempting to detain” him when he had done nothing wrong. When defendant raised his hands, Deputy Zeas noticed a large bulge in defendant’s right front pants pocket. Before Deputy Zeas could respond, defendant “spontaneously” told the deputies he had a gun….In my view, there was an attempted seizure only, and the detention did not occur until defendant subsequently complied with the deputies’ demand to get down on the ground.

• Roberts, ___ CA5 ___, ___ CR3 ___ (21) #C081843:

A thirteen-year-old girl was murdered in a Sacramento County park. Her murder went unsolved until defendant’s DNA was linked to her belt buckle and cigarette butts found at the scene. Defendant’s DNA had been collected after an unrelated felony arrest more than a year after Jessica’s murder. Although that arrest was supported by probable cause, he was not formally charged in that matter. Based primarily on the DNA evidence, a jury found defendant guilty of murder in the first degree. The jury also found true an enhancement allegation that defendant personally used a deadly and dangerous weapon, a knife. Defendant was sentenced to an aggregate term of 26 years to life.

Def’s 1538.5 motion was denied. The Court of Appeal, per Murray, J., affirmed.

The court addressed the issue of whether using a DNA sample taken from a defendant who is validly arrested for a felony on probable cause but never formally charged, violates the defendant’s federal or state constitutional rights against unreasonable search and seizure or his state constitutional right to privacy.

The court held that defendant’s federal right protecting him against unreasonable search and seizure was not violated. Following United State Supreme Court precedent, the court said it was no different than taking fingerprints and photographs of someone arrested on probable cause.

And like fingerprints and photographs, once validly obtained, the later use of that evidence in the investigation of another crime is not constitutionally prohibited.

Independent state grounds are not sufficient under the Truth-in-Evidence provision of Proposition 8.

There is a lengthy treatment of the two leading cases on this issue: King, 569 US 435 (13)and Buza, 4 C5 658 (18), concluding:

We disagree with defendant’s premise that what subsequently happened after booking—that he was neither formally charged nor subject to a probable cause determination by a neutral magistrate—meaningfully alters the Fourth Amendment calculus. The reasoning in King and Buza set forth ante implicitly disposes of defendant’s contentions. Indeed, as noted, the high court in King never suggested the applicability of the governmental interests that attach upon an arrest based on probable cause should be reevaluated or reconsidered depending on later proceedings in the criminal justice process, including a prosecutorial charging declination. No such rule is required for other common identification evidence collected at booking like photographs and fingerprints, and we see no reason why such a rule should be required for DNA profiles generated from junk DNA obtained from a person by buccal swab after a valid arrest as part of the booking process.

A Possible U. S. Supreme Court Case on Cell Phone Searches

We’re a bit low on new California cases this cycle, which gives us time to ponder what will surely be a frequent issue in the years ahead. A petition for certiorari is currently pending before the United States Supreme Court—Ohio v. Deuble.

From the blog of lawyer Michael Delsignore, comes the following facts:

A man by the age of 21 was chatting with a person he met on the lesser-known social media app “Whisper.” The man suspected he was chatting with 15-year-old “Bella Jane.” However, “Bella Jane” was actually a law enforcement officer posing as a teenager online to catch sexual predators.

Respondent initiated the conversation with “Bella Jane” with a bold first message that included a detailed description of his penis. “Bella Jane” responded, and the Respondent messaged back with more crude language and a photo of his penis. That morning, several investigators conducted surveillance, and Respondent sent a message to “Bella Jane” around the time he was supposed to meet her. After more sexting, the Respondent arranged to meet “Bella Jane” later that morning at a park nearby at 10:00 am. He said that he would be driving a green Honda. However, Respondent drove by the park and noticed police vehicles. He then messaged “Bella Jane” and said, “I drove by, and there was a cop, I am not trying to get arrested.”

An hour later, he returned to the park and began playing basketball. The undercover officer continued to message the Respondent through the app. Every time the officer would message the Respondent, the Respondent was observed to use his phone and reply. Based on this observed evidence, the officer radioed another officer to have Respondent arrested.

Once Respondent was detained, the officers collected his phone from the basketball court and sent a “test message.” to confirm that he was the person chatting with the undercover officer. He was taken into a truck for questioning and read his Miranda warnings. He admitted that he had come to the park that day to have sex with a 15-year-old girl. The officers sent a message to Respondent and saw that a notification appeared on the screen. The officers used this information for cause to arrest Respondent. Testimony during the suppression hearing supports the contention that law enforcement officers did not access the phone’s contents but observed a notification on Respondent’s phone screen.

At trial, the Respondent moved to suppress evidence, which the trial court denied. He sought to suppress all evidence at trial, which included his statement and the contents of his cell phone. He asserted that he was arrested without probable cause and that all of the evidence gathered should be excluded under the Fourth Amendment’s right against unreasonable seizure.

The appellate court applied Riley v. California to the case and held that the Respondent had a reasonable expectation of privacy when it came to his phone notifications. However, other circuits have found that there is no such expectation of privacy. Some courts compare notifications to a cell phone ringing; there is no reasonable expectation of privacy when it comes to one’s ringtone. However, notifications are much more detailed and give more information than just a ringtone.

This case presents two questions for the Court:

1) Whether probable cause to detain a person suspected of soliciting sexual activity from a minor (a posed undercover police officer) through social medial, where the person’s identity is corroborated by the actions he takes. The defendant never physically met the “teenage girl” he was sexting online. He agreed to meet girl (the law enforcement officer posing) and was the only person observed at the location using his cell phone as the “girl” sent him messages via social media.

2) Whether a phone is searched even if officers do not access the phone’s content.

Cert. has not yet been granted. Stay tuned.

Key search cases involving cell phones:

CARPENTER, 585 US ___, 138 SC 2206, 201 LE2 507 (18): FBI obtained cell-site information from Def’s cell phone carrier. Used to establish Def at location of robberies. Held, obtaining this information was a search requiring warrant supported by probable cause. 5-4, decision by Roberts, CJ.

RILEY, 573 US ___, 134 SC 2473, 189 LE2 430 (14): Stop for traffic violation and arrest on weapons charge. Offs searched cell phone data and found gang evidence, leading to sentence enhancement. Illegal warrantless search without exigent circumstances. Unanimous. Supersedes contrary Cal. Sup. Ct. decision in Diaz, 51 C4 84, 119 CR3 105, 244 P3 501 (11).

MACABEO, 1 C5 1206, 211 CR3 34, 384 P3 1189 (16): Offs stopped Def on his bicycle for failing to stop at a stop sign. Consented to search of pockets. Cell phone. Search by Off found obscene pics. Invalid under RILEY.