Bell's Compendium

• OVIEDA, 7 C5 1034, 250 CR3 754, 446 P3 262 (19):

In People v. Ray (1999) 21 Cal.4th 464, the California Supreme Court articulated a “community caretaking” exception to the warrant requirement for government entry into a private residence.

Ray held that “circumstances short of a perceived emergency may justify a warrantless entry” into a home.

The Court now overturns that part of Ray, holding that Under United States Supreme Court authority recognizes “exigent circumstances” as an exception, but not community caretaking.

FACTS:

Officers were dispatched to Def’s home in Santa Barbara after family members reported he was suicidal and had access to a handgun. Five officers responded and set up a perimeter. They learned defendant was inside with two friends, Trevor Case and his wife, Amber.

Case came out and told officers that he and his wife disarmed Def, then Case took the handgun, two rifles, and ammunition and put them in the garage.

Then Amber came out with Def. He was cuffed and searched.

Officers Corbett and Bruce entered the home to do a “protective sweep to secure the premises” and make sure there was no one else inside who might be armed, injured, or in need of aid. During the sweep, Corbett noted “an overwhelmingly strong odor of marijuana” and numerous items related to “marijuana cultivation and concentrated cannabis production.” He also saw ammo, a gun case, scales, and a large industrial drying oven with ducts leading to the garage.

More officers were called to the scene. No search warrant was ever obtained. Large quantities of ammo and drug-producing equipment were removed from the house and garage. Recovered weaponry included a submachine gun and a rifle with a long-range scope.

Defendant was charged with manufacturing a controlled substance, importing an assault weapon, and possessing a silencer and short-barreled rifle. He moved to suppress the evidence found in his home. The court denied the motion, and a divided Court of Appeal upheld the search via the “community caretaking exception.”

The California Supreme Court, per Corrigan, J., reverses. The decision analyzes Ray and subsequent cases, and United States Supreme Court precedent. The conclusion is simple:

In sum, the community caretaking exception asserted in the absence of exigency is not one of the carefully delineated exceptions to the residential warrant requirement recognized by the United States Supreme Court. To date, that court has only recognized community caretaking searches in the context of vehicle impound procedures.

***

We conclude that an entry for reasons short of a perceived emergency, or similar exigency, fails to satisfy the relevant constitutional standard.

 

Flight + High Crime Area (Without More) ≠ Reasonable Suspicion

• FLORES, 38 CA5 617, ___ CR3 ___ (19) #G055861:

On a weekday afternoon, seven officers went to an alleyway claimed by the “Looney Tunes Crew,” also known as the “LTK” street gang. The team approached via both ends of the alley. Def. started running away, made eye contact with an officer, and slowed down. He was detained.

Off noticed a bulge in Def’s sock. Def. gave it up. It was Meth. A later search of Def’s apartment was conducted without consent, and more meth was found.

Def. moved to suppress. The court granted suppression re: the evidence from the apartment. But the original detention and statements made by Def were admitted because there was both “flight” at the sight of police, and it was a “high crime area.” The court cited Illinois v. Wardlow (2000) 528 U.S. 119 for support.

The Court of Appeal, Per Thompson, J., reverses.

“[T]he Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion to detain. Instead, flight is but one relevant factor in the reasonable suspicion analysis.”

Reasonable suspicion requires “flight-plus” other circumstances. One of these is “high crime area” as in Souza, 9 C4 224 (94). But the court here distinguishes Souza because there the contact was at night. Here it was in the daytime.

So while the People argued for a bright-line rule of Flight + High Crime Area = Reasonable Suspicion, the court didn’t not go for it:

Wardlow fails to provide the People with the necessary support needed to justify defendant’s initial seizure. Consequently, the People failed to meet their burden to show specific, articulable grounds to justify detaining defendant. As such, the evidence obtained from defendant immediately following his detention was unlawfully obtained and should have been suppressed.

 

Officer Testimony About Surveillance Videos Adequate for Establishing P-C to Arrest

• Alexander, 36 CA5 827, 248 CR3 564 (19) #A151809:

SF Police sergeant investigated a series of ten robberies in August and September 2012. The suspects were two African-American males, one taller and thinner than the other. Off obtained police reports regarding all of the incidents and surveillance videos of eight of the incidents. He viewed and compared the videos multiple times.

Responding to a dispatch about another robbery, Off arrived in the general area in an unmarked vehicle about twenty minutes after the broadcast and observed two men cross the street about twelve feet in front of him. He “immediately recognized” them as the suspects in the robberies he had been investigating.

Off called for backup, followed Defs for a short distance, and then apprehended them at gunpoint. He searched a black bag and found two stolen cell phones. Another officer found car keys that were connected to a white Chevy that looked like the getaway car in one of the robbery videos. Off searched the vehicle and found a black replica handgun and a dark-colored beanie cap.

Defs moved to suppress. Denied. The Court of Appeal, per Simons, J., affirmed the denial.

Defs argued that the Officer’s testimony about the videos was hearsay, and therefore could be used as a basis for probable cause. The court did not agree.

In the present case, Sergeant Maguire’s testimony about how he obtained the surveillance videos and what he observed in the videos was not admitted to prove the videos depicted the robberies or to prove the content of the videos. Instead, the testimony was admitted to inform the trial court of the basis for Maguire’s belief he had probable cause to arrest appellants.

***

Sergeant Maguire testified under oath about surveillance videos of seven robberies. Maguire did not have personal knowledge of the robberies or how the videos were made, but there is little reason to doubt the videos depict the robberies under investigation.

• Mitchell v. Wisconsin, 588 US ___ (19) #18-6210:

Mitchell was found staggering near a lake and a van. Officers gave him a preliminary breath test which came out 0.24%. They took him to the police station, but he was too “lethargic” to give a breath test. So they drove him to a hospital.

Mitchell lost consciousness on the ride over and had to be wheeled in. The officer read aloud to a slumped Mitchell the standard statement giving drivers a chance to refuse BAC testing. Hearing no response, Jaeger asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.22%.

Mitchell moved to suppress the test, as it was conducted without a warrant. The trail court denied. Eventually the Wisconsin Supreme Court upheld the conviction. The U.S. Supreme Court took the case to decide whether a warrantless blood draw from an unconscious motorist is valid.

Short answer: Yes. When a driver is unconscious, the newly announced “general rule” is that a warrant is not required.

Two previous cases came into the discussion: McNeely 569 US 141 (13) and Schmerber 384 US 757 (66). In the words of the majority opinion (by Alito, J.):

We have also reviewed BAC tests under the “exigent circumstances” exception—which, as noted, allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U. S. 141, 149 (2013). In McNeely, we were asked if this exception covers BAC testing of drunk-driving suspects in light of the fact that blood-alcohol evidence is always dissipating due to “natural metabolic processes.” Id., at 152. We answered that the fleeting quality of BAC evidence alone is not enough. Id., at 156. But in Schmerber it did justify a blood test of a drunk driver who had gotten into a car accident that gave police other pressing duties, for then the “further delay” caused by a warrant application really “would have threatened the destruction of evidence.” McNeely, supra, at 152 (emphasis added).

Like Schmerber, this case sits much higher than McNeely on the exigency spectrum. McNeely was about the minimum degree of urgency common to all drunk- driving cases. In Schmerber, a car accident heightened that urgency. And here Mitchell’s medical condition did just the same.

The general rule is now as follows:

[E]xigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.

There is, however, a possible exception!

We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.

For this reason, the case was remanded back to Wisconsin to give Mitchell the opportunity to show these two conditions.

Gotta admit, this is confusing. A defendant would have to show that blood would not have been drawn at the hospital but for the police wanting BAC evidence. So he’d have to prove that a hospital emergency room does not routinely take a blood sample when an unconscious person is brought in for help. Then, step two, he’d have to show police acted unreasonably in ignoring a warrant application due to the “pressing needs” of the situation. Good luck with that, but there you have it.

Why the gymnastics? Justice Thomas, in dissent, argues that it’s because the Court didn’t want to overturn McNeely which was, according to Thomas, wrongly decided (McNeely held that the dissipation of BAC evidence alone was not an exigent circumstance).

In any event, this case did not take up the question of whether Wisconsin’s implied consent law would have allowed the blood draw here. That’s a question currently pending in our own state Supreme Court. See People v. Arredondo, S233582.

Police Spotlighting Parked Car Was a Detention

• KIDD, 36 CA5 12, 248 CR3 234 (19) #E070996:

Officer on patrol observed a car parked on a residential street with its front amber fog lights on. He could see two individuals sitting in the car. He decided to make contact, later explaining “there’s a couple people inside of this car parked on the road at 1:30 in the morning. Maybe I should check to see if they’re stranded, or what exactly they’re doing. If, you know, who they are, if they live here.”

The officer passed the car, made a U-turn, and parked about 10 feet behind the car, which had another car parked about 10 feet in front of it. He pointed two spotlights—one by his driver’s side mirror, the other on the overhead light bar (but not the colored lights)—at the occupied car, and then exited his patrol vehicle.

As he approached, he smelled marijuana. He flashlighted the interior and saw the passenger “attempting to conceal” what he thought were baggies of marijuana. He asked if either of the occupants was on parole or probation. Kidd said he was on probation The officer directed the two occupants to exit the car and to sit in his patrol vehicle while he verified Kidd’s probation terms. While the officer did so, Kidd spontaneously told the officer that there was a firearm inside the car’s center console. The officer confirmed that Kidd was on probation and that he was subject to a search condition. He then searched the car and discovered marijuana, later determined to total 26 ounces, in several different packages; a digital scale; a pistol with the serial number scratched off; a loaded magazine for the pistol; and 142 pills later identified as Alprazolam.

Kidd’s motion to suppress was denied prior to trial, but granted on a later motion to set aside the information, per PC 995. The Court of Appeal, per Raphael, J., affirms.

Taking into account the totality of the circumstances, we find that Kidd was detained when the officer made a U-turn to pull in behind him and trained spotlights on his car. The officer did not block Kidd’s car in, and he did not illuminate his colored emergency lights, so as to unambiguously signal a detention. Nevertheless, motorists are trained to yield immediately when a law enforcement vehicle pulls in behind them and turns on its lights. Regardless of the color of the lights the officer turned on, a reasonable person in Kidd’s circumstances “would expect that if he drove off, the officer would respond by following with red light on and siren sounding . . . .” (People v. Bailey, supra, 176 Cal.App.3d at p. 406.) Moreover, any ambiguity was removed when the officer more or less immediately exited his patrol vehicle and began to approach Kidd’s car. Although the officer’s approach was, according to record, not made in a particularly aggressive or intimidating manner, a reasonable person in Kidd’s circumstances would not have felt free to leave.

• Chamagua, 33 CA5 925, 245 CR 523 (19) #B290057:

Sheriff’s Deputy Gorski testified he and his partner were patrolling in a marked patrol car one night when they spotted Def walking along, but then immediately changed direction and quickly walked into an apartment complex driveway. Def. put something in his pocket. Gorski pulled the patrol car “just slightly” into the driveway, alongside Def. The officers got out and Gorski asked Def, “Hey, how are you doing? What’s your name? Do you got [sic] anything illegal on you?”

Def. said, “I have a pipe on me.” Gorski searched Def. and found a pipe with traces of crystal methamphetamine. Gorski asked, “Hey, you know, anything else illegal that you have on you?” Def. said, “Yeah, I have a bunch of meth on me.” Gorski searched Chamagua’s pocket and found a ping-pong-sized ball of crystal meth inside a transparent green container

Def. then admitted he was going to a party to sell the meth to support his own habit. He was arrested, and his motion to suppress was denied.

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

This issue in cases like this is whether a reasonable person would feel they were being detained by a “show of force” by officers.

Def’s rendition of the events was found not to be credible by the trial court. Thus, for this appeal, the court accepted only Gorski’s testimony.

The deputies did not use or threaten physical force. They did not command Chamagua to do anything. They simply asked questions.

Asking questions, including incriminating questions, does not turn an encounter into a detention. (See Florida v. Bostick, supra, 501 U.S. at p. 439.)

People targeted for police questioning rightly might believe themselves the object of official scrutiny. Such directed scrutiny, however, is not a detention. (People v. Franklin (1987) 192 Cal.App.3d 935, 940.)

Chamagua argues from People v. Lopez that Gorski’s questions were sufficiently accusatory to turn the encounter into a detention. (People v. Lopez (1989) 212 Cal.App.3d 289, 292–293.) But that opinion held an encounter was consensual and was not a detention.

Chamagua cites People v. Ramirez to argue police blocked him from leaving the area. (People v. Ramirez (2006) 140 Cal.App.4th 849, 852.) Ramirez was different. An officer ordered Ramirez, who was walking, to “hold on” and to put his hands on his head. (Ibid.) When officers order you to halt, to stand still, and to assume a position typically associated with arrest, they show police authority. By contrast, this case has no police orders and no shows of authority. Gorski simply asked Chamagua questions.

Chamagua stresses the encounter was at night. Sundown does not remove the power of free consent.

Warrantless, Forcible Blood Draw Valid Under Probation Search Conditions

• Cruz, ___ CA5 ___, ___ CR3 ___ (19) #F074667:

Def. was arrested for DUI. He was on felony probation from a previous DUI. Included in the conditions of probation were the following:

• Submit your person, vehicle, place of residence or any other belongings to search and seizure, without a warrant, any time day or night, by any Probation Officer and/or Peace Officer, with or without probable cause.
• If arrested for driving under the influence of alcohol in violation of Section 23152 or 23153 of the Vehicle Code, shall not refuse to submit to a chemical test of your blood, breath or urine.

Def. refused to take a test, so was transported to a hospital for a forcible blood draw, showing a 0.157 BAC.

Prior to his preliminary hearing, Def. moved to suppress all evidence obtained as a result of the blood draw, on the ground the warrantless invasion of his bodily integrity, undertaken without his consent, violated the Fourth Amendment. The magistrate ruled the terms and conditions of defendant’s felony probation justified the nonconsensual blood draw, and so denied the motion.

Following the filing of the information, defendant renewed his motion. Denied. A No Contest plea was entered, and this appeal followed.

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

The California Supreme Court has not yet determined whether a general probation search condition authorizes a warrantless, nonconsensual blood draw … Here, however, defendant was not merely subject to California’s implied consent law or a general probation search condition requiring that he submit his person, vehicle, place of residence, and belongings to search and seizure. Rather, he expressly agreed that if he was arrested for drunk driving, he would not refuse to submit to a chemical test of his blood. Because of this, his challenge to the validity of the search and seizure fails.

The court distinguished this case from those arguing exigent circumstances or incident to arrest to justify the search.

Defendant points to McNeely, Birchfield, and Schmitz….As we previously observed, McNeely addressed the exigent circumstances exception to the warrant requirement. (McNeely, supra, 569 U.S. at p. 145.) Schmitz was concerned with a warrantless parole search, and noted the “clear distinction between probation and parole with regard to consent.” (Schmitz, supra, 55 Cal.4th at p. 920.) Birchfield addressed searches incident to arrest. (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2184].)

Keep an Eye on:

• In re J.G., 33 CA5 1084, 245 CR3 587 (19) #B287487:

The juvenile court has broad discretion when it comes to imposing probation search conditions. But how far can they extend to electronic devices? That issue is currently pending in the California Supreme Court. See, e.g., In re Ricardo P. (2015) #S23092 (requiring disclosure of minor’s passwords to electronic devices was unconstitutionally overbroad because it was not narrowly tailored to limit impact on minor’s privacy rights).

In J.G., the trial court granted probation on a number of conditions, including that J.G. shall, “Submit any electronic device, used to store or transmit digital information, that you own, possess or control, to a search of any source of electronic data identified below, at any time, with or without probable cause, by a peace officer, and provide the peace officer with any passwords necessary to access the data source specified.”

Sources of electronic data identified in the probation condition were: text messages, voicemail messages, call logs, photographs, email accounts, social media accounts and internet browsing history.

Does that sound overbroad? No, says the court. “This kid is in trouble. He needs guidance. He does not need to access racial hatred which is so readily available on the internet.”

[see also People v. Bryant (2017) 10 Cal.App.5th 396, review granted June 28, 2017; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016.]

• Pride, 31 CA5 133, 242 CR3 297 (18) #SCD272182:

The victim, D.C., got off a trolley in San Diego. He was wearing red Jordan shoes, a hat, a gold chain, and two watches.

D.C. spoke to some men who were looking for a party. D.C. invited them to his hotel and told them he was looking for marijuana. He followed the men into a parking lot where another group of men was standing. D.C. asked where he could get some marijuana. Someone yelled, “This is West Coast” and then pummeled D.C.and took his shoes, hat, iPad, money, watches, and chain.

D.C. called 911. He reported a male with a scar along his jawline was among the individuals involved in the incident. A gang unit detective thought the suspect could be one Chaz Pride. The detective found a video Pride posted on a social media account shortly after the robbery depicting Pride wearing a gold chain around his neck saying, “Check out the new chain, dog.”

A few days later, officers executed a search warrant at Pride’s residence where several items associated with the robbery of D.C. were recovered. A debit card with D.C.’s name on it was recovered on the top shelf of a closet in Pride’s residence. The jacket Pride was wearing in the video was also recovered. When Pride was arrested, he was wearing D.C.’s gold chain.

Pride moved to suppress the video before it was played for the jury. He argued that the detective obtained the video without a warrant by portraying himself as a “friend” to gain access to Pride’s social media account. The court ruled the video was not illegally obtained and there is “no expectation of privacy” when one puts something out “into the ether.”

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

Pride voluntarily shared with his social media “friends” a video of himself wearing the chain stolen from D.C. The fact he chose a social media platform where posts disappear after a period of time did not raise his expectation of privacy. Rather, in posting the video message, Pride assumed the risk that the account for one of his “friends” could be an undercover profile for a police detective or that any other “friend” could save and share the information with government officials. As such, there is no Fourth Amendment violation.

Taint of Unlawful DNA Swab Attenuated Over Time With Intervening Circumstances

• Marquez, 31 CA5 402, 242 CR3 530 (19) #G048762:

In 2006, police arrested defendant Marquez in Ventura County on a drug possession offense. Without Marquez’s consent, authorities collected his DNA sample and entered his DNA profile into a statewide database, but Marquez was never charged with the drug offense.

In 2008, investigators retrieved DNA evidence from an Orange County robbery, and that evidence matched Marquez’s DNA profile in the database (a “cold hit”). Police contacted Marquez, and with his consent they collected a second DNA sample, which matched the DNA evidence from the robbery.

Marquez moved to suppress the 2008 DNA evidence as “fruit of the poisonous tree.” Motion was denied.

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

First, the 2006 DNA collection was unlawful because the prosecution did not meet its burden to prove that Marquez had been validly arrested. The court cited the U.S. Supreme Court opinion in Maryland v. King, 569 US 435 (2013) in which it established…

… a new exception to the warrant requirement, largely relying on the existing search incident to arrest and booking exceptions: “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

***

In any event, it is a reasonable inference that at the time of his arrest in 2006, there were no reasonable grounds to believe that he was guilty of any “serious” or “jailable” crimes.

But what about the 2008 DNA swab? Admissible, says the court, as “it was sufficiently attenuated from the unlawful 2006 collection of Marquez’s DNA sample.”

The Supreme Court has identified three factors that are used to determine whether the illegality (the poisonous tree) has become sufficiently attenuated to permit the admission of the obtained evidence (the fruit)… First, courts consider the “‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search”; this factor only favors attenuation if “‘substantial time’” has elapsed… Second, courts consider “the presence of intervening circumstances.” … “Third . . . [courts] examine ‘the purpose and flagrancy of the official misconduct.’”

***

First, as to temporal proximity, a substantial period of time (about two years) had elapsed between the unlawful collection of Marquez’s DNA sample in 2006 and the lawful collection of DNA evidence in 2008. (Compare Brendlin, supra, 45 Cal.4th at p. 270 [temporal proximity of “only a few minutes”].) Second, as to intervening circumstances, between 2006 and 2008, Marquez had been arrested at least three times and had been ordered to submit to DNA testing on each occasion; moreover, at the time of Marquez’s 2008 DNA collection, he was on felony probation and consented to the cheek swab. Finally, as far as the flagrancy of the misconduct, while the Attorney General concedes that the authorities were not statutorily authorized to collect Marquez’s DNA in 2006, there is nothing to indicate that they acted with an improper motive, or that they somehow obtained the DNA sample in an inappropriate manner.

A Lawyer’s Letter to a Son

Back in 1972 my big brother, Bob, was having thoughts about becoming a lawyer like our dad, Art Bell.

Bob was, at the time, a teacher at an elementary school in northern California. So he wrote Dad a letter—a real letter, on paper, with an envelope and a stamp!—asking for Dad’s counsel.

And Dad, never one to do things (like represent a client) halfway, wrote a long letter in response.

Dad thought his modest epistle might be something other lawyers would find of value. So he paid to have it published in installments in the Los Angeles Daily Journal.

It was a huge hit. The demand for copies proved so great that Dad had the whole thing printed up and paid for it to be included as an insert in a later edition of the Journal.

It exposits a view of the law that is rare today: as an honorable profession, not just a way to get money or power.

We’ve just republished it as an ebook and in print. You can check it out by going HERE.

The year was 1969.

Neil Armstrong took “one giant leap for mankind” on the lunar surface.

400,000 people in various forms of dress (and undress) hung out at a dairy farm in Bethel, New York, for a three-day musical happening known as Woodstock.

The last episode of the original Star Trek series aired on NBC. In the episode, titled “Turnabout Intruder,” one of Captain Kirk’s former lovers steals his body. (His toupee later showed up on a show called T. J. Hooker.)

And in Woodland Hills, California, a criminal lawyer named Art Bell released his pet project, a digest of the latest developments in search & seizure law, in an ingenious flip card binder that lawyers could carry to court. Before personal computers were even a gleam in Steve Jobs’s eye, this handy-dandy compendium could be used to instantly find a case on point during a suppression motion.

It was an immediate bestseller to California’s legal community.

Art Bell, my dad, did all the reading and research and squibbing of the case law, and sent out revisions ten times a year. In those early days he typed all the squibs himself on an IBM Selectric Composer. He then handed the text off to a graphic artist, who happened to be my older brother, Tim, who would roll hot wax on the backs of the cards, then use an X-Acto knife to slice the lines. These would be applied to a new card for photography and reproduction.

The whole thing was a family—and neighborhood—affair. Almost immediately Dad hired our next-door neighbor, a divorcee with four kids to raise, as assistant editor and all-around office administrator. Joan Blackmer remained an integral part of Bell’s Compendium for 41 years.

When Dad died in 1988, I’d been working with him for a couple of years, and was there to take up his work. And that’s what I’ve been doing ever since. My wife, Cindy, works alongside me handling the office and administration. It has been my honor to carry on Dad’s enterprise, and to be of service to practitioners of the law in California.

Thank you all for your support over the years. Onward we go!

Detention and Pat Down Search Invalid Based on Vague Description of Defendant and Possible Criminal Activity

• THOMAS, 29 CA5 1107, 241 CR3 87 (18) #C083845:

The facts were stated by the court as follows:

In the middle of the day, a person contacted law enforcement officers to report an adult black male wearing a sweatshirt and dark pants was “harassing” customers. The subject appeared to have some mental health problems and had “set up camp.” The area was a high-crime area, with a high number of transients and homeless people. The area also has a “fair amount” of foot traffic due to numerous retail shops and restaurants. Two and one-half hours after they received the call, law enforcement officers arrived to the area. They saw defendant sitting on the sidewalk, approximately 80 yards away from the business. He was wearing a Windbreaker, sweatshirt, and dark pants. There was no one else in the area.

Def repeatedly refused to ID himself and when asked if he was on probation, got up and started walking away. Offs put him in a control hold and handcuffs, then pat searched him. They removed a knife and a pipe and “observed” an EBT card with Def’s name. They ran a check and found out Def was on probation, then searched him more fully and found meth.

Def’s 1538.5 motion was denied. The Court of Appeal, per Robie, J., reverses, holding that the totality of circumstances were not enough to justify a detention.

The description was too vague.

There was a long lapse of time between the report and the arrival of the police. Def’s proximity to the scene of the reported harassment was not enough, considering it was a highly trafficked pedestrian area.

There were no facts reported indicating the “harassment” had any criminal elements.

Also, the probation search condition was not known to the officers when the detention and handcuffing took place.

Valid Consent by Wife to Search Home for Weapons

• Neal, 29 CA5 820, 240 CR3 629 (18) #A153101:

Def was acting in a suicidal manner at a river marina in Antioch, CA. Off. questioned him. Def. said he was previously in the military and had been a police officer and possessed police and military weapons at his home. He was taken to the hospital for evaluation.

Offs then went to Def’s residence and explained why they were there. She responded that there were weapons inside and she wanted them out of the house. She then let them in and showed them to a closet in the bedroom, where they found six firearms. They collected the firearms for safekeeping and provided Neal a property receipt. Later they found out Def had a prior felony conviction.

Def’s 1538.5 motion was denied, and the Cour of Appeal, per Kline, PJ, affirmed.

The sole issue was the consent by the wife:

[T]he trial court’s factual determination that appellant’s wife consented to the search based on her own desire to get rid of the guns, not because she felt legally compelled to do so, is amply supported by substantial evidence.

• Gutierrez , 27 CA5 1155, 238 CR3 729 (18) #A153419

The issue and holding are aptly stated by the court:

The issue in this case is one that arises every day in California. A law enforcement officer arresting someone for driving under the influence (DUI) informs the suspect that he or she must submit to a breath test or blood test to measure blood alcohol content (BAC). If the suspect, faced with this choice between tests, elects a blood test, must the arresting officer then get a warrant before having the suspect’s blood drawn? We conclude no warrant is necessary in these circumstances, under the well-recognized and categorical exception to the Fourth Amendment’s warrant requirement for a search incident to arrest.

The United States Supreme Court recently applied the search-incident-to-arrest doctrine to BAC testing in Birchfield v. North Dakota (2016) 579 U.S. ___ [136 S.Ct. 2160] (Birchfield). Birchfield held that a motorist arrested on DUI charges may be compelled to blow into a machine to measure the driver’s BAC; the arresting officer needs no warrant because a breath test is a valid search incident to a DUI arrest. (Id. at p. 2176.) But if instead the officer directs that the suspect’s blood be drawn for the same purpose, the officer does need a warrant. A blood test is more intrusive, and so cannot be justified under the search-incident-to-arrest exception to the warrant requirement, Birchfield held. (Id. at p. 2184.) What Birchfield does not address is how the search-incident-to-arrest exception applies when a suspect is compelled to undergo BAC testing but given a choice as to what form that testing takes. We hold that this element of choice is dispositive, and that if a DUI suspect freely and voluntarily chooses a blood test over a breath test then the arresting officer does not need a warrant to have the suspect’s blood drawn.

The Birchfield case arose out of North Dakota, which made the following distinction possible:

Unlike North Dakota, where the law enforcement officer determines which test to administer, in California a DUI suspect usually is given the choice between a breath test and a blood test . . . Gutierrez was given that choice. For him, the search consisted of whichever of the two chemical tests he preferred. If the state can lawfully require a DUI suspect to take a breath test – and Birchfield says that it can – then surely the state can lawfully require the suspect to take that same breath test or an alternative if he prefers it. That the state cannot compel a warrantless blood test does not mean that it cannot offer one as an alternative to the breath test that it clearly can compel. This was the essential insight of the appellate panel that led it to reverse the trial court in this case.

Thus, the crucial issue is consent, and for that the standard test is used:

By opting for the more intrusive procedure, Gutierrez effectively volunteered for whatever additional intrusion a blood test involves, over and above the intrusion inherent in a breath test. For this reason, a suspect who opts for a blood test may be said to consent to the additional intrusion the test entails. But this is a different question from whether a suspect consents to a chemical test in the first place. Consent to a search, as a separate exception to the warrant requirement, must be evaluated under the totality of the circumstances. … Here, the parties cite a host of circumstances to support their respective arguments as to whether Gutierrez freely and voluntarily consented to the search in this case.

Ruling on Pat Searches Post Prop. 64

• Fews, 27 CA5 553, 238 CR3 337(18) #A151727:

Prop. 64 added Health and Safety Code section 11362.1, which provides that “it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to: . . . [p]ossess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis . . . “

And further that “[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.”

In this case, a white SUV was pulled over in the Tenderloin district of San Francisco. The driver, Mims, popped out of the SUV while Fews remained inside. The duo made “furtive movements” while the Offs smelled the odor of burning hippie lettuce. Mims admitted to having a blunt.

Based on the high-crime area, the odor, and the furtive movements, the Offs patted down both Mims and Fews. Fews had a Beretta semiautomatic handgun. He also had three prior strikes and was out on bail enhancement.

So Fews moved to suppress, based on Prop. 64:

Fews argues that after the passage of Proposition 64, law enforcement officers can no longer assume that a person possessing a small amount of marijuana is armed and engaged in criminal activity. We think this contention overstates the effect of Proposition 64. It remains unlawful to possess, transport, or give away marijuana in excess of the statutorily permitted limits, to cultivate cannabis plants in excess of statutory limits and in violation of local ordinances, to engage in unlicensed “commercial cannabis activity,” and to possess, smoke or ingest cannabis in various designated places, including in a motor vehicle while driving. (Bus. & Prof. Code, §§ 26001, subd. (k), 26037, 26038, subd. (c); see Health & Saf. Code, §§ 11362.1, subd. (a), 11362.2, subd. (a), 11362.3, subd. (a), 11362.45, subd. (a).) The possibility of an innocent explanation for the possession of marijuana “does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (In re Tony C. (1978) 21 Cal.3d 888, 894.) Because marijuana possession and use is still highly circumscribed by law even after the passage of Proposition 64, the odor and presence of marijuana in a vehicle being driven in a high-crime area, combined with the evasive and unusual conduct displayed by Fews and Mims as discussed above, were still reasonably suggestive of unlawful drug possession and transport to support the Terry frisk.

Sniffing Around For A Prolonged Detention

• Vera ___ CA5 ___, ___ CR3 ___ (18) #E069367

In RODRIGUEZ, 135 SC 1609 (15), the U.S. Supreme Court held that a traffic stop may not be prolonged for a dog sniff once the “mission” of the traffic stop (e.g., issuing a citation) is completed.

In this case, Vera was pulled over for illegally tinted windows. After showing some initial recalcitrance, Vera was ordered out and patted down. He had a “switchblade” knife that was legal.

Another officer arrived, and officer #1 went to his car to get a citation book and his dope-sniffing dog. Officer #2 started writing out the citation, during which time the dog alerted on the car. To the tune of 4.5 kilograms of meth.

Vera was charged with felony possession for sale. His 1538.5 was denied, and the court of appeal, per Raphael, J., affirmed.

The key distinction with RODRIGUEZ is that here the dog sniff was concurrent with the “mission” of the traffic stop. The alert on the car happened while the citation was being written.

The issue to be determined is the length of time it reasonably takes to issue a ticket in any given circumstance.

• COLLINS, 584 US ___, 138 SC 1663, ___ LE2 ___ (18) #16-1027

The facts of the case are simple. During an investigation of two traffic incidents involving an orange-and-black motorcycle, Virginia police officer Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Collins.

Officer Rhodes discovered photographs on Collins’ Facebook profile of an orange-and-black motorcycle parked in the driveway of a house. (Note to scofflaws: stay off of social media.)

Rhodes drove to the house, and parked on the street. From there, he could see what appeared to be a motorcycle under a white tarp parked in the same location as the motorcycle in the photograph. Without a search warrant, Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers. He took a photo of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins.

When Collins returned, Rhodes arrested him. The trial court denied Collins’ motion to suppress and Collins was convicted of receiving stolen property.

The Virginia Court of Appeals affirmed. The State Supreme Court also affirmed, holding that the warrantless search was justified under the Fourth Amendment’s automobile exception.

The Supreme Court, in an 8-1 decision, reversed and remanded.

The Court refused to expand the automobile exception to the curtilage of a home. Writing for the majority, Justice Sotomayor said:

Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.

Justice Thomas, while concurring in the decision, floated the idea that it was time to “revisit” the exclusionary rule. Ahem.

Justice Alito was the lone dissenter. He asserts that what the officer did was perfectly reasonable and even though it was within the curtilage, the action “impaired no real privacy interests.” He was answered by the majority in a lengthy footnote that basically says, Dude, this was private property here, not a public street.

To paraphrase Clint Eastwood: Get off my driveway.

Prosecution Needs Search Warrant to Obtain Cell Site Location Information

• CARPENTER, 585 US ___, 138 SC 2206, ___ LE2 ___ (18) #16-402

The FBI identified the cell phone numbers of several robbery suspects. Prosecutors were granted court orders to obtain the suspects’ cell phone records under the Stored Communications Act. Wireless carriers produced CSLI for petitioner Timothy Carpenter’s phone, and the Government was able to obtain 12,898 location points cataloging Carpenter’s movements over 127 days—an average of 101 data points per day.

Carpenter moved to suppress the data, arguing that the Government’s seizure of the records without obtaining a warrant supported by probable cause violated the Fourth Amendment. The District Court denied the motion, and prosecutors used the records at trial to show that Carpenter’s phone was near four of the robbery locations at the time those robberies occurred. Carpenter was convicted. The Sixth Circuit affirmed, holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers.

The United States Supreme Court reversed 5-4, with Chief Justice Roberts writing the majority opinion joined by Ginsburg, Breyer, Sotomayor and Kagan.

The Court holds that acquisition of cell-site records is a Fourth Amendment search. Therefore a warrant, supported by probable cause, must be obtained.

But CJ Roberts added the following:

Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not … call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security. As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.”

There were four dissenting opinions filed. But four does not beat five.

Warrantless Blood Draw of Injured UI Driver Violated 4th

• MEZA, 23 CA5 604, 232 CR3 894 (18) #A147188:

Def. was in a car accident with his girlfriend. At the hospital his blood was drawn per procedure. Off. noticed “odor of alcohol” and informed Def. another blood draw would be taken by forensic expert. Def. said, “Okay.” Off. did not seek a warrant. Trial court denied suppression motion.

The Court of Appeal, per Tucher, J., held the second blood draw was a 4th violation. Under McNEELY, 133 SC 1552 (13): “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

Conviction was upheld, however, through harmless error. The first blood draw by the hospital was permissible because that’s what they do with all trauma patients.

Note: the court distinguished Toure, 232 CA4 1096 (15), because there Def. was violent, and court closings impacted time to get warrant.