- ALVAREZ, ___ CA5 ___, ___ CR3 ___ (23) #D080585:
Officers responded to a fatal accident scene. Defendant Alvarez had driven one of the cars and seemed “uninjured but shaken.” Emergency medical arrived and took Alvarez and the sole survivor from the other car to the hospital.
An officer went to the emergency room to request a blood draw from Alvarez, but he was not responsive. The officer ordered one taken anyway. Two-and-a-half hours had elapsed between the accident and blood draw.
Was this permissible under the exigency exception to the warrant requirement?
In Mitchell, 588 US ___,139 SC 2525 (19), the Supreme Court held “when police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.”
Key word, almost.
The court here cites McNEELY, 569 US ___, 133 SC 1552 (13), which held that officers need a blood-draw warrant if one is practical to obtain.
Here, the court found in the record that a telephonic warrant was possible and would not have hindered the investigation. When asked why he did not seek one, the officer had stated, “I just didn’t think of a warrant at that time. . . . And I don’t think I was thinking I should get a warrant or I shouldn’t get a warrant. That didn’t cross my mind at that time, I guess.”
So no exigent circumstances here. The People, however, argued another exception: Good faith, specifically, good faith reliance on the applicability of California’s implied consent law.
Generally, an unconscious or incapacitated person is “deemed not to have withdrawn his or her consent” and a blood or breath test may be administered without giving any admonition about loss of driving privileges.
However, the person must be lawfully arrested for violation of certain sections of the VC, or there must be probable cause to arrest.
Alvarez was not arrested for any offense at the time of the blood draw, and the officer had made no decision to arrest him. Officer Yost had not yet determined who was at fault in the collision. Nor did probable cause exist to support the warrantless blood draw.
Does Forcing Finger to Free Up Phone Frustrate Fourth?
- Ramirez ___ CA5 ___, ___ CR3 ___ (23) #H049957:
Suspecting Def of lewd and lascivious contact with several minors, Officer obtained a warrant to search Def’s phone for photos and videos. In the warrant application the Off stated: “Your affiant requests permission to contact [defendant] so that we can use his fingerprint to open his cell phone. … It has been my training and experience that newer smart phones are difficult to access absent the passcode or fingerprint even with recent technological advancements. … [¶] Your affiant will attempt to get [defendant’s] cooperation in order to obtain his fingerprint. Should he not cooperate with you[r] magistrate’s order, your affiant request[s] permission to use reasonable force to obtain his fingerprint on his cell phone.”
At the jail, the Off “grabbed” Def’s hand and “guided it toward the phone.” The Def pulled away, but then allowed Off to “guide” his hand toward the phone, while stating, “I’m not giving you permission to do that.” A fingerprint on Def’s left hand unlocked the phone, and Off looked through the contents of the phone, finding lewd images.
Def’s motion to suppress was denied. The Court of Appeal affirmed.
The issue of whether compelling Def to provide his finger is itself a search under the Fourth Amendment was not resolved, because the court held that the S-W authorized the use of “reasonable force” to get the print, even though that was not on the face of the warrant. Def argued it had t be there.
However, defendant cites no authority for the proposition that the magistrate’s authorization to use his fingerprint was required to be contained on the face of the warrant rather than in the probable cause statement that was incorporated into the warrant. Generally, “the scope of the officer’s authority is determined from the face of the warrant and not from the affidavit.” (Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 109.) Here, nothing on the face of the warrant either specifically authorized Gonzalez to unlock the phone with defendant’s fingerprint or prohibited Gonzalez from taking this action. A deficient description of the place to be searched or items to be seized may be cured by reference to the affidavit where “(1) the affidavit accompanies the warrant at the time it is served, and (2) the warrant uses suitable words of reference which incorporate the affidavit by reference. [Citations.]” (People v. MacAvoy (1984) 162 Cal.App.3d 746, 755.)
However, the court gave an “even if”—
Even if the electronic communications search warrants could not be reasonably understood to encompass the compelled use of defendant’s fingerprint, suppression of the evidence discovered on defendant’s phone was not required because the good faith exception to the exclusionary rule applies.
Def also argued that the compelled digit violated his right against self-incrimination, but the court ruled that a finger unlocking a phone is not “testimonial in nature.”
Def argued that using physical force to get the print violated due process.
In performing a search or seizure of a person, law enforcement “may not use unreasonable force to perform a search or seizure of a person.” (People v. Rossetti (2014) 230 Cal.App.4th 1070, 1078.)…[The] physical force [Off] used to effect the unlocking of the phone was minimal and reasonable.
No Standing to Challenge Search of Phone
- Banks 97 CA5 376, 315 CR3 428 (23) #B312618:
Def was stopped for a traffic violation. Off observed MJ, and also a 14-year-old girl passenger (Doe). A check revealed Def’s license was suspended and there was a misdemeanor traffic warrant for his arrest. A search of the car turned up “revealing clothing,” wigs, condoms. Def was arrested and Doe questioned at the station. Doe consented to a search of her cell phone and signed a consent form. Officer searched the phone and saw information that confirmed his belief that Def was involved in human trafficking or sex for money.
Def moved to suppress the phone evidence. The trial court found no standing. But Def asked the court to find a reasonable expectation of privacy in the data transmitted to a third party because of the “complex, detailed and private nature of smartphone communication.”
The answer is, no. We decline the invitation to depart from this well-settled doctrine.