Bell's Compendium

• 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.

 • BREWER, ___ CA5 ___, ___ CR3 ___ (17) #A151584

 Def. was passenger in the back seat of a van, behind the driver. Offs approached and Def. “ducked down.” Off. then approached the front passenger seat and “located” marijuana in the possession of the person sitting there. Offs conducted a search of the vehicle (apparently after ordering the three occupants out). They found a Glock 10-millimeter loaded with a 15-round magazine underneath the rear of the driver’s seat.

Def. was charged with possession of a firearm with a prior violent conviction; having a large-capacity magazine; and carrying a loaded firearm.

At the prelim, Def. moved to suppress. Denied, the court holding that he lacked a legitimate expectation of privacy. After the prosecution filed an information, Def. moved under 995 to set it aside, renewing his argument that the gun evidence should be suppressed. Denied again.

Def. filed for a write of mandate, arguing that he was not challenging the search of the vehicle, but that he himself was unlawfully detained, and therefore the gun was the fruit of the poisonous tree.

The Court of Appeal, per Rivera, Acting P.J., issued a writ of mandate issue directing respondent Superior Court to vacate and set aside its ruling denying the motion to set aside the information, and to thereafter conduct further appropriate proceedings. The Court stated:

The parties have not cited any cases from California holding that a defendant may move to suppress evidence as the fruit of an unlawful detention even if the defendant lacked an expectation of privacy in the vehicle where the evidence was found. But there is an abundance of authority from other jurisdictions that supports defendant’s argument.

Well, yes, but all you need is BRENDLIN, 551 US 249 (07), which held that when a police officer detains a vehicle, both driver and passenger are seized and may challenge the constitutionality of the stop.

Done and done.

Defendants’ Rights in the Digital Age

This is a fast-evolving area of law. The United States Supreme Court has granted cert. in a case called United States v. Carpenter. The court will consider the scope of the Fourth Amendment’s protection of information contained in a cellular carrier’s records.

Two issues in that case: Whether digital information voluntarily exposed to others is protected by the Fourth Amendment; and whether government access to information collected by a private business in order to provide a service to a customer constitutes a search.

Another issue currently under consideration by the California Supreme Court is whether a criminal defendant has a constitutional right to obtain social media records from an online hosting service (Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203, review granted December 16, 2015, S230051).

The Court of Appeal has tackled the same issue in Facebook, Inc. v. Superior Court, 15 CA5 729, 223 CR3 660 (17).

Real Party in Interest, Touchstone, was on trial for attempted murder. The victim was active on the public portion of Facebook about the incident and his recovery. Touchstone sought access to the nonpublic content of the Facebook account, to be examined in camera, arguing there could be exculpatory evidence. He served Facebook with a subpoena. Facebook filed a motion to quash, citing the Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.)

Held, the SCA prohibits electronic communication service providers from knowingly divulging to any person or entity the contents of a nonpublic communication. While the statutory prohibition is subject to limited exceptions, none applied here.

Much more on this will be coming in the months and years ahead. Meanwhile, there is no truth to the rumor that YouTube, Twitter and Facebook are going to merge into one online site called YouTwitFace.

My Dad’s Book

Dad died in 1988, and I still miss him. Many of you never got to meet him, though there are still many who remember him and how helpful he was to young lawyers, or how entertaining a speaker when covering California search and seizure law.

What you may not know is his background. Raised in Hollywood, he was a star football and baseball player at Hollywood High School. He went on to play catcher for the UCLA baseball team, where his teammate was one Jackie Robinson.

In college he joined the Navy ROTC program and saw action throughout World War II. He was captain of three ships: the destroyers USS Dallas and USS Kinzer, and his first command and first love, the PC 477.

The PCs were 173-foot, steel-hulled submarine fighters. Uncle Sam had thousands of seamen on hundreds of PCs convoying and patrolling in WWII. They were introduced in the desperate days of early 1942, when the waters off America’s Atlantic coast were a graveyard of torpedoed ships. They performed essential, hazardous, and sometimes spectacular missions. Dad was part of all that.

In the late 1970s, Dad decided to write a memoir of his time aboard the PC 477 (the ship’s nickname was “Peter Charlie”). It was a true labor of love, and brought him back in contact with many of his shipmates. He collected letters and stories and photos, and wrote the book.

Dad self-published Peter Charlie in 1982. He paid a local printing outfit a princely sum to do a beautiful hardback edition, with dust jacket and all. I can’t recall how many he had printed up. Maybe 2,000. He sold them himself out of his law office and it found popularity among many ex-Navy men all over the country. When Dad died, I took over his practice and the writing of Bell’s Compendium. And I am proud to report that by 1999 or so, the entire print run had sold out. The book even returned a bit of a profit! But that appeared to be as far as this memoir would go.

And then the Kindle happened! And now, through the wonder of digital publishing, the book will never again be out of print.

My hope is that those who had parents or grandparents who served in WWII, and anyone interested in a first-hand report of what life was like aboard a naval vessel at that time, will be both edified and educated by this account. It is full of funny stories, historical data, some rare photos, and lots of interesting details.

You can read Peter Charlie on your Kindle or via the free Kindle app for your smartphone or tablet. All you have to do is go right here.

• IN RE D.W., 13 CA5 1249, 221 CR3 332 (17):

San Francisco police were on patrol in response to a broadcast that someone in the area might have a firearm. They saw five to eight individuals, most of whom they knew to have gang associations, standing on the corner in a rival gang area. The officers were concerned that the group might be ready to rumble.

Officers approached D.W, smelled marijuana on his clothes and breath. One officer said, “Man, you smell like marijuana,” and D.W. admitted he had just blazed.

The officers decided to search D.W. to see if he had more hippie lettuce. They patted down his backpack felt a revolver. After conducting the search, the officers determined that D.W. was 17 years old.

D.W. moved to suppress the gun. He argued: “In the case at bar, none of the officers on the scene observed any suspected drug contraband in plain view of the minor. . . . Smelling of marijuana is not a crime; being under the influence of marijuana is not a crime. There was no probable cause to search him. There was no probable cause to arrest the minor for anything (and thereby, search him incident to a valid arrest), and there was no reasonable suspicion that he was armed and dangerous.”

The trial court denied the motion. The Court of Appeal, per Siggins, J., reversed.

The People tried to justify this as a “search incident.” But incident to what? Not arrest, because, as the court explains:

But at the time of this search in 2015, possession of less than 28.5 grams of marijuana was an infraction punishable by a fine of not more than $100. (Health & Saf. Code, § 11357, subd. (b).) Under California law ingestion or possession of marijuana was a minor, non-jailable offense. (People v. Hua (2008) 158 Cal.App.4th 1027, 1037.) Moreover, even if the officers could reasonably conclude that the smell of marijuana and D.W.’s admission that he just smoked some meant he had more, it would have been mere conjecture to conclude that he possessed enough to constitute a jailable offense.

This case may be used as authority post Prop. 64. California’s booyah-friendly Health & Safety Code adds the following at H&S 11362.1(c):

Marijuana and marijuana 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.

 

Distressed Dogs Justified Entry Into Yard

• Williams, ___ CA5 ___, ___ CR3 ___ (17) #B275226

A field officer with the Los Angeles County Department of Animal Control responded to a report of a loose horse out near Lancaster. He followed the horse slowly in his vehicle until the horse stopped at a property and tried to get in through a fence.

The officer heard several dogs barking at the place. He walked along the outside of the fence toward the horse to try to determine if the dogs were loose and could frighten or injure the horse. He saw the dogs were confined in “makeshift” kennels of chain link fencing and plywood inside the yard.

He called for backup and a trailer for the horse. The other officer arrived and they knocked at the property but got no response. They heard several dogs barking in the back yard, as well as a dog barking and “whining” from inside the garage. There was a strong smell of “excessive” fecal matter. One officer looked through a broken window in the upper corner of the garage door. There was a dog inside, in conditions that appeared “unhealthful.” He also saw a “slat mill” partially covered by a tarp. A slat mill is a device used in the training of fighting dogs.

They went through an open gate into the backyard, and found several pit bulls in cages, two of them with scars.

They took several photos. The owner arrived and was issued a misdemeanor citation for the horse. Several weeks later a search warrant was served on the property.

The officers recovered 19 pit bulls (11 adults and 8 puppies), many of which were emaciated or had sores or scars. They also recovered the slat mill device and three boxes of documents related to dog fighting, among other items.

Defendants’ motion to suppress was denied. The Court of Appeal, per Grimes, J., affirmed.

The primary issue was whether exigent circumstances allowed the officers to enter the yard and make the observations that were the basis for the search warrant.

Defendants argue there were no circumstances that justified the officers proceeding into the back yard after having looked in the garage. Given the facts known to the officers, it was not unreasonable for them to be concerned about the condition of the dogs they could hear barking incessantly from the back yard. They could have reasonably believed they were justified to walk into the back yard and briefly check on the dogs in the kennels that were visible from outside the fence.

 

Speculative Impound Scenario Not Enough to Justify Inevitable Discovery Exception 

• WALLACE, ___ CA5 ___, ___ CR3 ___ (17) #A149049

Defendant sought reversal of the judgment against him for possession of a baton or similar weapon in violation of Penal Code section 22210, which the court entered after a negotiated disposition of his case.

Officer Ambrose of the Fairfield Police Department found the baton in defendant’s vehicle after defendant was stopped by another officer for a traffic violation and then arrested at the scene by Ambrose as a suspect in a domestic violence incident.

Defendant argued that the trial court erred when it denied his motion to suppress evidence relating to the baton on the ground that it was obtained during an inventory search of his vehicle.

The People did not defend the search as a valid inventory search or otherwise that it was constitutionally permissible. Rather, they asserted that the judgment should be affirmed because police inevitably would have discovered the baton in the course of impounding the vehicle and taking an inventory of its contents.

But the court concluded there was no substantial evidence either that the evidence was obtained as the result of a valid inventory search, or even that one occurred.

The People’s inevitable discovery argument fails because it requires us to build speculative inference on top of speculative inference …

First, as already discussed, the record is silent as to whether anyone even considered towing the vehicle …

Second, there is no indication that the vehicle was actually towed …

It is possible that defendant’s vehicle was towed but, again, a mere possibility does not rise to the level of substantial evidence.

• NGUYEN, 12 CA5 574, 219 CR3 124 (17) #H042795:

Police identified an IP address for an Internet account sharing child pornography online. Comcast identified the account subscriber as Jennie Reynolds at 309 South 23rd Street in San José. The police obtained a search warrant for the residence, garages, and outbuildings at the address.

While searching Reynolds’ house, the police discovered defendant Kevin Nguyen was living in a separate residence behind the house. The police then searched Nguyen’s residence and found a laptop with child pornography. The trial court found the search overbroad and granted Nguyen’s motion to suppress.

The Attorney General appealed. He contended the warrant expressly authorized the search. He argued the warrant affidavit set forth probable cause to search any residence on the property because anyone on the property could have accessed Reynolds’ computer network wirelessly. Finally, the Attorney General contended the police acted in good faith reliance on the warrant.

The Court of Appeal, per Premo, J., held the police lacked probable cause to search defendant’s residence because they had no basis to believe the suspect network was accessed from defendant’s residence. They further held that the warrant did not expressly authorize the search, and the police lacked good faith reliance on the warrant.

We find no language in the warrant authorizing a search of Nguyen’s residence. The warrant identified “a single story single family residence” to be searched—i.e., the front house on the street, which the warrant described in detail. The warrant makes no mention of Nguyen’s residence. As to the claim his residence was included under the term “garages” in the warrant, the trial court made a factual finding that the rear structure was not “simply a garage” but was “plainly a separate residence.” Under our standard of review, we are bound by the trial court’s finding if it is supported by substantial evidence.

***

We hold the police lacked probable cause to search Nguyen’s residence because the police had no basis to believe the network with the suspect IP address was accessed from Nguyen’s residence. The Attorney General contends this rule creates “an unreasonable Catch-22” because the police have no way to ascertain which buildings on a property have access to a given network. The Attorney General asserts this creates “an unduly stringent burden on investigators.” But as the trial court pointed out, the police could have done several things to establish probable cause for a search of Nguyen’s residence. After entering Reynolds’ house, officers could have asked her if she had a wireless network, whether it was password-protected, or whether Nguyen’s residence shared access to the network. If the police had established probable cause to believe Nguyen’s residence held evidence of a crime, they could have obtained a telephonic warrant. Given that Nguyen was held at the Mountain View Police Department during the search, the police had sufficient time to do so.

***

[Finally, t]he Attorney General argues the police acted in good faith reliance on the warrant, even if the search exceeded the scope of the warrant. The trial court rejected this claim. The court found the police knew Nguyen’s residence was not a garage before they searched it, and the court found police had no basis to believe his residence had access to the suspect network. The court’s analysis was sound.

Passenger’s Probation Search Condition Leads to Inevitable Discovery of Drugs

• Cervantes, 11 CA5 860, 217 CR3 830 (17)

Offs stopped Def’s car for expired registration. They searched his vehicle after they learned that the adult female riding in the front passenger seat had provided them with a false identity and was subject to a felony warrant and probation search condition.

In the back seat they saw guy stuff: a “men’s toiletries bag” and an opaque bag with guy stuff in it … like boxer shorts. But they also found a baggie with meth.

They then searched the center console and found more of what turned out to be meth. Def. moved to suppress. Denied.

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

Def. argued that the Offs should not have searched the men’s items because it was a woman who was subject to the probation search condition. The court, however, stated:

We need not address this specific argument because we agree with the Attorney General that even if Officer Larson had not begun his search with those bags, he would inevitably have discovered the drugs contained in them. That is, Officer Larson was (as we will explain) entitled to search the center console; he undoubtedly would have done so regardless of whether he first discovered drugs in the backseat bags; he would have found the methamphetamine in the center console; and he then would have justifiably searched the rest of defendant’s car and its contents, leading to his inevitable discovery of the drugs in the backseat bags.

See also …

Guzman, 11CA5 184, 217 CR3 509 (17): Def. charged with two counts of of lewd acts upon child under 14. Def. called minor witness to challenge victim testimony. People offered phone call with wit. and vic’s mother to impeach. Supp. Den. Aff. Exclusionary provision of Cal’s Invasion of Privacy Act limited by Prop. 8.

• Parrott, 10 CA5 485, 216 CR3 208 (17):

Two police officers were driving on Pine Street in Eureka, California one night. As they approached an intersection they observed a small purple hatchback without illuminated rear or brake lights, rolling backwards toward the intersection. Not knowing if there was a driver in the vehicle, the officers positioned their patrol car behind the hatchback to keep it from rolling further down the street. Seconds later the vehicle came to a stop, Parrott exited from the driver’s side of the vehicle and proceeded to push it to a nearby curb.

One Officer, Harkness, asked if he could assist Parrott, offering a tow truck or a ride. Parrott replied that he didn’t really need any assistance. Parrott was wearing a hooded sweatshirt, with a visibly heavy item bulging from the front pocket. As the interaction progressed, the officer noticed Parrott appeared nervous and continued to touch the bulging item in the front pocket of his sweatshirt.

Officer Harkness asked Parrott to step off the road and onto the sidewalk. When on the sidewalk, Harkness asked for name and date of birth. The officers then reported Parrott’s name to dispatch. Parrott appeared nervous. At one point, Harkness asked Parrott to refrain from reaching into the front pocket of his sweatshirt, fearing it might contain a weapon.

Dispatch informed the officers that Parrott’s license was suspended. Harkness tried to cuff him, but Parrott resisted. He was subdued and patted down. He had a gun in the sweatshirt.

Parrott was charged with possession of a firearm by a felon and driving without a valid driver’s license. He moved to suppress the evidence. The trial court denied the motion.

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

The court addressed two issues:

(1) At what point in the encounter was appellant detained?

In determining whether a reasonable person would have believed he or she was free to leave or end the encounter, a court must take into account the totality of the circumstances from the perspective of a reasonable person in the defendant’s position.

***

Appellant contends he was detained when officers asked him to keep his hands out of his pockets and to step onto the sidewalk. We disagree.

When Officer Harkness initially contacted appellant, he did so to inquire about appellant’s disabled vehicle and to offer assistance. A reasonable person in appellant’s position would have realized that, by offering him a tow truck or a ride to someone who could repair the car, Officer Harkness was attempting to help appellant get out of his predicament. There are no facts in the record indicating the initial interaction was anything more than a consensual encounter, or that the officer was investigating criminal behavior.

As the interaction progressed, Officer Harkness asked appellant to refrain from placing his hands in his pockets and to provide his name and date of birth. Appellant argues that, considering the totality of the circumstances, these requests constituted a show of authority that indicated to appellant “an investigation was being focused on him.” …

[A]sking an individual to keep his hands out of his pockets is not akin to conveying to an individual that they are suspected of being involved in unlawful activity. Rather, asking appellant to keep his hands out of his pockets is a normal, expected response to an officer’s concern for his or her own personal safety during the encounter. Furthermore, prior to being asked to move onto the sidewalk, there was no application of force, no brandishing of weapons and no blocking of exits. Finally, even after the parties moved onto the sidewalk appellant asked the officers if he could smoke a cigarette, and one of the officers responded by stating “there was no reason that he couldn’t smoke a cigarette.”

(2) Did the officers have the proper level of suspicion to justify a detention and patdown search?

The patdown did not begin until it was confirmed that appellant did not have a valid driver’s license, and only after he physically resisted two attempts by the officers to handcuff him. Given these circumstances and the struggle that ensued, the officers justifiably feared that appellant was armed, and thus the patdown search was a lawful search under the Fourth Amendment.

Police May Enter Home Without Warrant to Aid Potential Victim

Pou, 11 CA5 143, ___ CR3 ___ (17) #B269349:

In Fisher, 558 US 45 (09) and Troyer, 51 C4 599 (11), the U.S. Supreme Court held that officers may enter a residence without a warrant if they reasonably believe there is a potential victim inside.

In this case, officers received a call about a woman screaming, along with “distressed moaning.” They arrived and heard loud male and female voices arguing. Through the window one officer saw two males gesturing angrily. The officers knocked and kept on knocking until defendant opened up. They went in and searched to make sure everyone was okay … or perhaps in a closet, wherein they found cocaine … enough for sale.

Def’s 1538.5 motion was denied, and the Court of Appeal, per Kin, J., affirmed.

Here, the officers were told by the radio dispatch operator that someone had reported hearing a screaming woman and distressed moaning at the location. Upon arrival, consistent with the radio dispatch call information, the officers could hear from the outside loud voices—both male and female—engaged in an argument inside the house. One officer additionally saw through the window that two males in the house were gesturing as if arguing. Under these circumstances, it was objectively reasonable for an officer to believe that immediate entry was necessary to render emergency assistance to a screaming female victim inside or to prevent a perpetrator from inflicting additional immediate harm to that victim or others inside the house.

Further, the court found that the scope of the search was reasonably tied to the apparent emergency with which the officers were presented. It was a “very large house” and the officers were entitled to conduct an emergency search of “all places in the house where a body (victim or suspect) might have been hiding or lying in wait, including the closet in which the drugs were found.”

•  MACABEO, 1 C5 1206, 211 CR3 34, 384 P3 1189 (16)

Detective Hayes and Officer Raymond of the Torrance Police Department were on routine patrol at 1:40 a.m. in a dark, residential neighborhood. When they saw defendant on a bicycle roll through a stop sign, they activated their overhead lights and stopped him.

After inquiring about defendant’s probation status, Hayes asked if defendant had “any problem with me taking stuff out of your pockets,” and defendant said “go ahead.”

Hayes removed a number of items, including defendant’s phone. Hayes gave it to Officer Raymond. Defendant was never asked for permission to activate the phone or examine its contents. After five to 10 minutes, Raymond told Hayes that he had found no suspicious text messages on defendant’s phone, but that the picture folder contained images of underaged girls. Defendant was then arrested for possession of child porn.

Defendant moved to suppress. The court denied the motion. The Court of Appeal affirmed. But the California Supreme Court reverses.

In People v. Diaz (2011) 51 Cal.4th 84 (Diaz), we held that, incident to a custodial arrest, police may search through data on a defendant’s cellular phone without obtaining a warrant. The United States Supreme Court subsequently held to the contrary in Riley v. California (2014) 573 U.S. __ [134 S.Ct. 2473] (Riley).

Under Riley, the “ordinary justifications for searches incident to arrest are to secure weapons, prevent escape, and preserve evidence of crime. These apply with less force in the context of cell phone data. With respect to officer safety, ‘[o]nce an officer has secured a phone and eliminated any potential physical threats . . . data on the phone can endanger no one.’ (Id. at p. __ [134 S.Ct. at p. 2485].)”

The People argued that the officers here relied in good faith upon Diaz. But the court held that even under Diaz, this would not have been a proper search.

The Court concludes:

So, the posture of our case is this. First, the phone search was conducted without a warrant and was improper unless justified by an exception to the warrant requirement. Second, defendant was not on probation, so the search could not be based on that nonexistent status. Third, the People concede that defendant did not consent to the search of his phone. Fourth, the search did not qualify as incident to arrest under the Fourth Amendment. Fifth, under Riley, even if defendant had been properly arrested, a warrant was required to search the phone.

“Do It Yourself” Suppression Motion Was a Losing Game of “Hide and Seek”

• Quick, 5 CA5 1006, 210 CR3 256 (16)

Def. was pulled over by Atascadero police officer for bad taillight. Def. said that he had recently rewired the car and may have incorrectly connected the wires. Off. noticed that Def’s pupils were constricted, he was exhibiting facial tremors, and open sores on his face. These were symptoms of a person under the influence of a controlled substance. Def. admitted using Percocet and marijuana earlier in the day.

He was ordered out of the car for field sobriety tests. Knowing “his goose was cooked” if searched (fowl language courtesy of the court), Def. took off his jacket and threw it in the car, rolled up the window, tossed in his keys, locked the door and closed it.

Def. failed the FSTs. His car was blocking a driveway so it was ordered towed. An inventory search turned up 25.9 grams of methamphetamine (259 to 518 single doses) in the jacket pocket, two meth pipes, and a Taser.

Def. moved to suppress, contending that the search was invalid as both an inventory search and a search incident to arrest. Suppression motion denied.

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

The court held it was a valid inventory search. The inventory officer testified that …

… the sole purpose of the impound search was to inventory what was in the vehicle and to verify that nothing was missing when the vehicle was returned to appellant. Vehicle Code section 22651 authorized the vehicle impound. (See People v. Aguilar (1991) 228 Cal.App.3d 1049, 1053 [court focuses on the purpose of the impound rather than the purpose of the inventory].) When a vehicle is lawfully impounded, an inventory search pursuant to an established, standardized procedure does not violate the Fourth Amendment. (South Dakota v. Opperman, supra, 428 U.S. at pp. 371-375; People v. Nottoli (2011) 199 Cal.App.4th 531, 545-546; People v. Evans (2011) 200 Cal.App.4th 735, 743, fn. 5.)

In the alternative, the court also held that the search was valid incident to arrest. Def. argued that under Arizona v. Gant (2009) 556 U.S. 332, the search was unreasonable because the officers had no reason to believe that evidence relevant to the arrest for driving under the influence of a controlled substance would be found in the vehicle.

Appellant admitted using Percocet and marijuana earlier in the day and was under the influence of a controlled substance when driving. When he stepped out of the vehicle to perform the field sobriety tests, he threw his jacket and keys into the car, rolled up the window, and locked and shut the door. Officer Chesson thought it was “odd” behavior but consistent with what someone driving under the influence would do if trying to hide drugs. In accordance with Gant, “the focus of the inquiry is entirely upon the nature of the offense of arrest, rather than the particular facts of the case. [Citation.]” (People v. Evans, supra, 200 Cal.App.4th at p. 748.) “[W]hen a driver is arrested for driving under the influence, or being under the influence, it will generally be reasonable for an officer to believe evidence related to that crime might be found in the vehicle. [Citations.] It is certainly logical and reasonable to expect that items related to alcohol or drug consumption, such as alcoholic beverage bottles or drug paraphernalia, might readily be contained in the intoxicated driver’s car.” (Id., at p. 750.) The trial court did not err in finding that the search was reasonable and incident to the arrest for driving under the influence of a controlled substance. (Ibid.; People v. Nottoli, supra, 199 Cal.App.4th at p. 553.) A person arrested for driving under the influence may not defeat a “search incident to arrest” by locking incriminating evidence inside his vehicle. As indicated, it is a crime to do so.

The court made it plain:

The interaction between a peace officer and a person suspected of committing a crime is not a game… Knowing that his “goose was cooked” if the officer conducted a search, appellant attempted what was tantamount to a “do it yourself” suppression motion…This was a game of “hide and seek” which he was bound to lose. It was a sophomoric attempt to thwart the lawful seizure of evidence and a crime itself, i.e., a willful obstructing of a peace officer. (Pen. Code, § 148, subd. (a)(1).) A person detained for investigation has no constitutional right to dispose of evidence. (People v. Bracamonte (1975) 15 Cal.3d 394, 405, fn. 6; People v. Maddox (1956) 46 Cal.2d 301, 306.)