Category Archives: Auto Searches

Sep 19 2023
Auto Searches, Probable Cause, Probation/Parole Searches, Search Warrants

P-C to Search Passenger Area of Car Did Not Extend to Trunk

  • LEAL, 93 CA5 1143, 311 CR3 540 (23) #C096463

Officers were surveilling a funeral because they expected a criminal street gang connected to prior shootings to be in attendance. An officer observed a juvenile walking and holding his pants up; he later observed a black handgun in his waistband. The juvenile got in Def’s car and lay down, then got out, appearing not to have the weapon. Off thought the juvenile had slipped the gun under the seat.

Defendant drove his car to a barbershop. Another officer detained him and said he was going to search his car. When he didn’t find a gun under the passenger seat, he decided to search the trunk. There he found a loaded Glock handgun.

Def moved to suppress. Denied. The Court of Appeal, per Robie, J., reverses.

A survey of cases applying the automobile exception reveals courts generally find warrantless searches of trunks and other enclosed compartments in a vehicle justified in three categories of circumstances: (1) officers have probable cause to believe contraband or evidence of a crime will be found specifically in the trunk or other enclosed compartment; (2) a search of the passenger compartment reveals contraband or other evidence generating further probable cause to search the trunk or other enclosed compartment; or (3) probable cause exists as to the entire car (i.e., that the contraband or evidence of a crime will be found somewhere in the car). The search of the trunk here does not fit within any of these categories.

Holding:

We hold that when an officer has probable cause to believe contraband or evidence of a crime will be found specifically in the passenger compartment of a vehicle (as compared to having probable cause to believe it will be found somewhere in the vehicle), and no other subsequent discovery or information provides further probable cause to believe the evidence will be found in the trunk, an officer’s search of the trunk exceeds the permissible scope of a warrantless search under the automobile exception.

Descriptions of Child Porn Were Adequate to Establish P-C

  • Wadleigh, 93 CA5 531, 310 CR3 948 (23) #A165017

Two search warrants issued re: child porn. In the affidavit, no images were attached, only four descriptions of the images. Def. moved to suppress, arguing that the warrants authorizing the two searches were invalid because their descriptions of four images in his electronic accounts lacked sufficient factual detail from which the magistrate could determine that (1) the subjects were minors and (2) the images depicted sexual conduct within the meaning of section 311.4, subdivision (d)(1).

1538.5 denial affirmed.

The court agreed with Wadleigh that the preferred course of action in such matters would be to attach actual images. However, there was enough info in the descriptions to establish P-C:

[W]e agree with Wadleigh that “a neutral and detached magistrate” (Illinois v. Gates, supra, 462 U.S. at p. 240), should in general view suspected images of child pornography and make the ultimate determination that the depicted individuals are minors. On the facts here, however, we conclude that the magistrate had a substantial basis to conclude the images depicted minors.

There was a Franks issue regarding the description of the first of the images. Under Franks v. Delaware 438 US 154 (78), the Supreme Court held that, where a “defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included . . . in [a] warrant affidavit,” and then proves the statement was reckless or intentional, “the affidavit’s false material [is] set to one side.” . . . If “the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded . . . .”

The court here concluded that, setting the first image to one side, the other descriptions established probable cause for the searches.

Auto Stop for Registration Was Unduly Prolonged

  • SUGGS, 93 CA5 1369, 311 CR3 739 (23) #C096555

Def’s car was stopped for having paper plates, and Off not seeing paperwork displayed in the window as required by law. On approach, the Off did see the paperwork attached to the darkly tinted window. He proceeded to question Def and passenger, ask for ID, and if there was anything “crazy” in the car. He also asked about probation status.

Off then asked for consent to search the car. Def declined. Off went back to his patrol vehicle then returned and informed Def and his passenger that they both had suspended licenses, the passenger was on probation for “possession of firearms stuff and a couple other things,” and he was going to conduct a probation search.

The search turned up a concealed firearm and ammunition in a satchel on the floor behind Def’s seat that was within the passenger’s reach. Based on that discovery, Off searched the entire vehicle and found a scale and a cigarette box holding 30 pills of a controlled substance in a compartment near the steering wheel.

Def’s motion to suppress was denied. The Court of Appeal, per Boulware Eurie, J., reverses.

We agree the detention became unlawful when (1) the purpose of the stop completely dissipated (when the officer saw the documents in the window and thus realized that defendant had not committed the Vehicle Code violation that was the purpose of the stop), and (2) the officer then made inquiries aimed at finding evidence of ordinary criminal wrongdoing.

GPS Tracker Placed on Car Was Permissible as Parole Search

  • Session, 93 CA5 723, 311 CR3 363 (23) #G060536

String of burglaries in Orange County. Offs stopped white BMW with Def driving. Off placed a GPS tracking device on the car before allowing it to leave. Car was later stopped after a chase. Phones and other items linked to burglaries were recovered.

Def moved to suppress, arguing that placing the GPS tracker was an impermissible warrantless search because the Off’s knowledge of his parole statues was “vague or uncorroborated.” Denied. Affirmed by the Court of Appeal, per Moore, J.

[W]hen a defendant is on parole, the source of the officer’s knowledge is not legally meaningful. Defendant, in support of the contention that the officer’s knowledge must come from an official source, relies primarily on a case involving a probationer, not a parolee. (People v. Romeo (2015) 240 Cal.App.4th 93)

Jan 20 2023
Auto Searches, Temporary Detention

Police Spotlight on Legally Parked Car, Without More, is Not a Detention

• Tacardon, __ C5 ___, ___ CR3 ___, ___ P3 ___ (22) #S264219:

Deputy sheriff on patrol drove past a BMW legally parked in front of a residence. Smoke emanated from slightly open windows. Deputy made eye contact with the occupants as he drove past. He made a U-turn, parked 15 to 20 feet behind the Beemer, and turned on his spotlight—not his emergency lights.

He then approached the BMW at a walking pace. He did not draw a weapon. A woman sitting in the backseat jumped out of the BMW, said she lived there. Deputy directed the woman to stand near the sidewalk behind the BMW where he could see her.

He smelled MJ from the car, used his flashlight to look at the interior. He saw one large and two smaller clear plastic bags on the rear passenger floorboard containing “a green, leafy substance.”

Tacardon was in the driver’s seat. The deputy asked Tacardon if he was on probation or parole. Tacardon said he was on probation. Search of the car nabbed three bags of MJ and a vial with 76 hydrocodone pills.

Tacardon was charged with possession for sale of hydrocodone and marijuana. His 1538.5 motion was granted, based on the detention of the woman and, ipso facto, Tacardon. The Court of Appeal reversed. In analyzing the deputy’s initial approach, the Court of Appeal expressly disagreed with Kidd, 36 CA5 12 (2019), which found an unlawful detention on similar facts.

The California Supreme Court, per Corrigan, J., granted review to resolve “this conflict in the Courts of Appeal.”

In Kidd, the court observed: “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 . . . .’ ” (quoting People v. Bailey (1985) 176 Cal.App.3d 402)

The Supreme Court majority disagrees, opining that “the use of a spotlight generally conveys a different meaning to a reasonable person than the use of a patrol car’s emergency lights.”

In other words, a reasonable person would feel free to drive off…and that the cops would not follow. Adopting the “totality of the circumstances” test for such situations, there needs to be something “more” than a spotlight on the car.

[W] decline to state a bright-line rule. A court must consider the use of a spotlight together with all of the other circumstances. It is certainly possible that the facts of a particular case may show a spotlight was used in an authoritative manner. These may include flashing lights at the driver to pull the car over or attempting to blind the driver, which would be relevant considerations under the totality of the circumstances….But use of a spotlight, standing alone, does not necessarily effect a detention.

Justice Liu filed a dissent.

I imagine this conclusion comes as news to anyone who has ever had their car illuminated by a police spotlight. The court apparently envisions that a reasonable person in Tacardon’s circumstances would think, “Oh, the officer who just eyeballed me, made a U-turn, pulled up behind me in his patrol car, pointed a bright spotlight at my car, got out of his car, and is now walking toward me isn’t trying to stop me. He just turned on his spotlight to see what’s going on. Good thing he didn’t turn on his emergency lights . . . looks like I’m free to leave.” This strains credulity.

 

Parole Search of Auto Did Not Extend to Locked Glove Box

  • CLAYPOOL, 85 CA5 1092, 301 CR3 858 (22) #C096620:

Brandon Claypool was driving a Honda Accord with two passengers: Malcolm Clay in the front passenger seat, and parolee Carlos Olivia in the rear seat on the passenger’s side. Police followed until Claypool stopped on residential street.

Olivia informed police he was on parole. Offs. ordered all occupants out and did a parole search of the passenger area, then used Claypool’s key to unlock the glove box. They found a gun and ammo. The encounter was captured on police bodycam.

Claypool was charged with possession of a firearm by a felon, with enhancement for a prior strike. His motion to suppress was denied. He brought a timely petition for writ of mandate and a motion to dismiss. The Court of Appeal, per Robie, Acting P.J., sends this back to the trial court with directions to grant the motion.

As articulated in Schmitz, 55 C4 908 (12), a permissible search based on a passenger’s parole status is limited to “those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity.”

Here, the court held that “it does not appear objectively reasonable to believe the back seat passenger, Olivia, might have secreted a gun in the glove box after he saw police.”

 

Minors Smoking MJ in Car Gave P-C to Search Under Auto Exception

  • Castro, 86 CA5 314, 302 CR3 185 (22) #B318174:

Officers saw Castro and another male sitting in a parked car with expired registration, with windows rolled down. There was a strong odor of burning MJ coming from the car.

Officer exited patrol car and made contact with Castro, in the driver’s seat. He recognized the front passenger seat and another male lying in the backseat (who appeared to be hiding) from prior encounters with them, and knew they were minors. He asked Castro if they had been smoking, and Castro said yes. Officer ordered them all out, cuffed them, and searched the car.

He found a nine-millimeter ammunition in the closed center console. He opened the trunk and found an open duffle bag with a loaded nine-millimeter handgun, with no serial number on it.

Castro was charged with carrying a loaded, unregistered handgun in a vehicle. He moved to suppress, contending the search did not fall under the Auto Exception to the warrant requirement. Motion denied.

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

Based on the “strong odor” of “burnt marijuana” emanating from Castro’s car, Castro’s admission he had smoked marijuana, and the fact all occupants of the car were under 21 years of age, the officers had probable cause to believe they would find contraband or evidence of a crime (e.g., marijuana possessed by someone under 21) in the car. We are unpersuaded by Castro’s argument that probable cause did not exist because he told Officer Zendejas he had smoked marijuana two hours before. Officer Zendejas’s belief “that there was still marijuana in the car based on the current smell of marijuana coming from inside the car” was reasonable under the circumstances of this case. Accordingly, we conclude the officers had probable cause to search the car under the automobile exception, and the trial court did not err in declining to suppress the evidence from the vehicle search.

Castro also asserted that “In light of the passage of Proposition 64, police may no longer search an automobile simply because they smell marijuana inside a vehicle stopped for an expired registration.” But because all of the occupants were under 21, it was still unlawful for them to possess any amount of MJ for recreational use.

Jan 16 2020
Auto Searches, Bugging, Exigent Circumstances

No Warrant Exception For Searches for ID After Traffic Stop (Overturning Arturo D.)

• LOPEZ, 8 C5 353, ___ CR3 ___, 453 P3 150 (19) #S238627:

In Arturo D., 27 C4 60 (02) the California Supreme Court upheld a limited search of places in a vehicle where a driver might have hidden ID after a traffic stop. Here, in a split decision, the court revisits and overturns Arturo D. in light of the U.S. Supreme Court’s decision in GANT, 556 US 332 (09).

Acting on an anonymous tip about erratic driving, a police officer approached defendant Maria Elena Lopez after she parked and exited her car. When the officer asked if she had a driver’s license, she said she did not. Police then detained her for unlicensed driving and, without asking her name, searched the car for Lopez’s personal identification. They found methamphetamine in a purse sitting on the front passenger’s seat.

Def’s motion to suppress was granted by the trial court, but reversed by the Court of Appeal. Now the California Supreme Court reverses, upholds the suppression, and remands for further proceedings.

But after considering both further guidance from the United States Supreme Court and the practices of every other state in the nation, we conclude the time has come to correct a misperception of the constraints of the Fourth Amendment in this context. We recognize that law enforcement agencies have crafted policies in reliance on Arturo D., and our decision today will require them to adopt a different approach in scenarios like the one presented here. But inasmuch as subsequent legal developments have called the validity of the traffic-stop identification-search exception into question, the change in approach is warranted.

***

For these reasons, we now hold the Fourth Amendment does not contain an exception to the warrant requirement for searches to locate a driver’s identification following a traffic stop. To the extent it created such an exception, In re Arturo D., supra, 27 Cal.4th 60, is overruled and should no longer be followed.

Note, however, that this is only a holding on a per se rule. Other exceptions still apply, for example:

CONSENT: Ingle, 129 CA3 188, 181 CR 39 (82): From outside of auto, Def. said her license was in wallet under seat. Off. entered and seized it, smelled fresh, unburned MJ. Found it in basket and trunk.

EXIGENT CIRCUMSTANCES: Faddler, 132 CA3 607, 183 CR 328 (82): At 2 a.m. 3 were in auto driven erratically. One leaning out window with whiskey glass, shouting. Stopped by Off., took off, stopped 2nd time. Ordered out. Def. said driver’s Lic. was in glove compartment. Off. opened door to retrieve it and saw MJ baggie on floor. More found later. 995 Dis. Rev. Exigent circumstances justified Off. getting license himself for his own safety.

The Court also riffed on the crime of lying to an officer (Pen. Code, § 148.9; Veh. Code, §§ 31, 40000.5.) If the officer manages to adduce evidence that the subject is lying about their identity, then the officer may search upon probable cause to believe evidence of such lying will be found in the vehicle.

 

Obsolete “Community Caretaking” Exception Can’t Save Police Break-in Search

• RUBIO, ___CA5 ___, ___ CR3 ___ (19) #A152455:

Police responded to shots fired outside a home in “high crime neighborhood.” Arriving, they found shell casings and detained a bellicose man, one Bazan. At front door, Def’s father let officers in. Def. emerged from garage-apartment into the house, locking the door behind him. Offs broke down the door and found weapons, ammo and meth.

The People attempted to justify the breaking-and-entering search as falling under the “community caretaking” exception. Def’s 1538.5 motion was denied, and the Court of Appeal affirmed.

But then!

Less than four weeks after we announced our decision, the California Supreme Court decided Ovieda [7 C5 1034, 250 CR3 754, 446 P3 262 (19)], in which it disapproved the lead opinion in Ray to the extent the prior decision had relied on an expansive reading of the community caretaking exception to allow warrantless entry into a home. (Ovieda, supra, 7 Cal.5th at p. 1038.) We then, on our own motion, granted rehearing and asked the parties to brief the significance of Ovieda for this case.

The opening of the opinion sums up the holding:

If a man lives in a high crime neighborhood and somebody discharges a firearm outside his home, may the police break down his door and enter his apartment when he refuses to invite them in to investigate? The Fourth Amendment answers a resounding “no”—at least not without circumstances, not present here, that would cause a reasonable person to believe that someone in the apartment stood in need of emergency aid, or that some other exception to the warrant requirement applied. The need to render emergency aid justifies warrantless entry only where officers have “ ‘ “specific and articulable facts” ’ ” showing that an intrusion into the home was necessary. (People v. Ovieda (2019) 7 Cal.5th 1034, 1043 (Ovieda).) It is not enough that officers seek to rule out “the possibility that someone . . . might require aid.” (Id. at p. 1047.)

These principles render the warrantless search of defendant Adan Rubio’s garage apartment unconstitutional.

 

Recorded Phone Conversation in Violation of PC 632 is Admissible

• Guzman, 8 C5 673, ___ CR3 ___, ___ P3 ___ (19) #S242244:

A jury convicted Def. of two counts of committing a lewd and lascivious act upon a child after it heard a recorded phone conversation between the mother of one of the victims and defendant’s niece. The mother had secretly recorded the conversation without the niece’s consent, thereby violating Penal Code section 632. Subdivision (d) of that section prohibits the admission of “evidence obtained . . . in violation of this section . . . in any judicial, administrative, legislative, or other proceeding.” (§ 632, subd. (d) (hereafter section 632(d)).) The Court of Appeal, however, found that section 632(d) has been abrogated in the relevant part by “the ‘Right to Truth in Evidence’ provision of the California Constitution. The court thus concluded the recording was properly admitted and affirmed defendant’s convictions.

The Cal. Supreme Court granted review to determine the continued viability of section 632(d) in light of the limits placed on the exclusion of evidence by the “Right to Truth-in-Evidence” provision of the Constitution.

Within the context of defendant’s criminal trial, the recording in this case was relevant evidence. By the express terms of the Right to Truth-in-Evidence provision, therefore, the recording could “not be excluded.”

We conclude that to the extent section 632(d) demanded the suppression of relevant evidence in a criminal proceeding, it was abrogated when the voters approved Proposition 8. Moreover, although the Legislature amended section 632 by a two-thirds vote several times after the enactment of Proposition 8, none of these amendments revived the exclusionary remedy of section 632(d). In each of these instances, the Legislature reenacted section 632(d) only as an incident to its enactment of other statutory provisions. Nothing in the language, history, or context of the amendments evinces an intent on the part of the Legislature to render surreptitious recordings once again inadmissible in criminal proceedings.