Bell's Compendium

• Evensen, ___ CA4 ___, ___ CR3 ___ (16) #A145162

By using a set of software tools known as RoundUp, Napa police learned that an IP address, later determined to be assigned to Evensen’s mother, had downloaded child pornography. RoundUp enables law enforcement officials to detect child pornography on peer-to-peer file-sharing networks. Peer-to-peer networks allow users to share digital files over the Internet. To access these networks, users need only download onto their computers a free software program. The program allows a network user to upload a file onto his or her computer, and it then allows other users to access and download the file onto their own devices. A user who buys a music CD, for example, can convert it into a digital file and upload it onto the peer-to-peer network, thereby allowing other users to access and download the file.

When a network user uploads a file, it is placed in a “shared folder” on the user’s computer. Other users can find files in shared folders by using a keyword search.

Officer Darlene Elia of the Napa Police Department used the RoundUp website to look for Napa County IP addresses used to download or share child pornography. She searched all available peer-to-peer networks. The search returned an IP address, eventually determined to be Evensen’s mother’s. RoundUp flags files known to be child pornography by coding them in red. Looking at RoundUp’s historical list for this particular IP address, Officer Elia saw over 200 red flags.

Using a public website, Officer Elia determined that the IP address was registered to Comcast. Officer Elia then obtained and executed a search warrant for Comcast records and discovered that the subscriber for the IP address was Evensen’s mother. Officer Elia then obtained a second search warrant for the mother’s home. Evensen was present when Officer Elia executed the warrant. After searching Evensen’s room, Officer Elia arrested Evensen and read him his Miranda rights.

Evensen’s arrest was made public, and evidence of more sex crimes came to light. After hearing of the arrest, Jane Doe 1 came forward and claimed that Evensen had raped her and performed other sex acts on her while she slept. Jane Doe 2, whom police identified from images on one of Evensen’s external hard drives, revealed that she had, at Evensen’s request, sent sexually explicit images of herself to him when she was 16 years old. And Jane Doe 3, who was identified by Jane Doe 1 from an image seized from Evensen’s home, told police Evensen had performed various sex acts on her while she slept.

In his motion to suppress, Evensen argued that the use of the RoundUp program amounted to an unconstitutional search and that all of the evidence against him should be suppressed because all of it emanated from this search. After a hearing, the trial court denied the motion, and Evensen then pleaded no contest to one count of advertising for sale obscene matter depicting a minor (Pen. Code, § 311.10), three counts of oral copulation of an unconscious person (id., § 288a, subd. (f)), one count of rape of an unconscious person (id., § 261, subd. (a)(4)), two counts of using a minor for sex acts (id., § 311.4, subd. (c)), and two counts of sodomy of an unconscious person (id., § 286, subd. (f)). He was sentenced to fifteen years, eight months in prison.

The denial of the suppression motion was affirmed, per Humes, P.J.

Computer users generally have an objectively reasonable expectation of privacy in the contents of their personal computers. (United States v. Ganoe (9th Cir. 2008) 538 F.3d 1117, 1127 (Ganoe).) But there are exceptions to this general rule, and one of them is that computer users have no reasonable expectation of privacy in the contents of a file that has been downloaded to a publicly accessible folder through file-sharing software.

***

Evensen testified that he did not always immediately move files out of his shared folder and that another network user once partially downloaded one of his pornographic files. He cannot claim that his shared folder was private at all times or that he believed it to be. Moreover, RoundUp would not have even detected Evensen’s files if they had never been publicly accessible. According to Officer Ichige, RoundUp compiles information from files stored in network users’ shared folders and cannot search files stored elsewhere on users’ computers.

9th Circuit

“Knock and Talk” Exception Not Applicable When Officers Intended to Arrest

• LUNDIN, ___ F3 ___ (9 Cir. 16) #14-10365

At 4:00 a.m. three officers approached Eric “Whitey” Lundin’s home without a warrant. Lundin was a member of the Mongols motorcycle gang. He had threatened a woman with death, brandishing two handguns. The officers came to “knock and talk” and arrest Lundin.

On his front porch they knocked on the door. They heard crashing noises coming from the back of the house. They ran to the back, ordered Lundin to come out of the fenced-in backyard, and arrested him. After putting Lundin in a patrol car, several officers briefly searched Lundin’s home, including the back patio where they found two handguns in open view. The handguns matched the description of guns used in the threat.

Lundin was charged with being a felon in possession of a firearm and ammunition. He moved to suppress the evidence obtained from the patio and inside the house, as well as statements he had made before he was read his Miranda rights. The trial court granted with respect to the guns, but not the statements. The 9th Circuit Court of Appeals affirmed, and remanded.

The government argued exigent circumstances, in this case hearing the crashing noises in the back. The issue, then, was whether the officers had the right to be within the curtilage of Lundin’s home when they knocked on his door.

The government contends that the officers were permitted to knock on Lundin’s door under the so-called “knock and talk” exception to the warrant requirement, which permits law enforcement officers to “‘encroach upon the curtilage of a home for the purpose of asking questions of the occupants.’” Perea-Rey, 680 F.3d at 1187 (quoting United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001)). The “knock and talk” exception resembles to some degree the exception for consensual searches. The relevant “consent” in a “knock and talk” case is implied from the custom of treating the “knocker on the front door” as an invitation (i.e., license) to approach the home and knock. Jardines, 133 S. Ct. at 1415 (citation omitted).

However:

The “knock and talk” exception to the warrant requirement does not apply when officers encroach upon the curtilage of a home with the intent to arrest the occupant.

Also from the 9th Circuit:

• EVANS, ___ F3 ___ (16) #14-10024:

Applying Rodriguez v. United States, 135 S. Ct. 1609 (2015), the panel held that, by conducting an ex-felon registration check and a dog sniff, both of which were unrelated to the traffic violation for which he stopped Evans, an officer prolonged the traffic stop beyond the time reasonably required to complete his traffic mission, and so violated the Fourth Amendment, unless there was independent reasonable suspicion justifying each prolongation. The panel remanded to the district court for consideration in the first instance of whether the officer’s prolongation of the traffic stop was supported by independent reasonable suspicion.

• Carey, ___ F3 ___ (9 Cir. 16) #14-50222

 The facts are pretty simple. Federal agents secured a wiretap order for a San Diego phone number based on evidence that one Escamilla was using the number in a drug smuggling and distribution conspiracy. Agents monitoring the wiretap overheard drug-related phone conversations. At some point during a seven-day period, the agents realized that Escamilla was not using the phone.

Agents continued listening, believing the people speaking on the phone might have been part of the Escamilla conspiracy. The seven days of wiretap monitoring culminated in a traffic stop, and agents then confirmed that the persons on the phone had no connection to Escamilla.

Michael Carey was eventually identified as a speaker in some of the phone calls, and he was then charged with conspiracy to distribute cocaine. Carey moved to suppress the evidence obtained from the wiretaps, arguing that the government violated the Wiretap Act (18 U.S.C. §§ 2510–22) by never applying for a wiretap as to him or his coconspirators. The district court denied the motion, ruling that the government could rely on the Escamilla order to listen to Carey’s conversations.

The 9th Circuit Court of Appeals has a two-fold holding:

The Fourth Amendment provides an exception to the warrant or probable cause requirement when police see contraband in “plain view.” We adopt a similar principle today and hold that the police may use evidence obtained in “plain hearing” when they overhear speakers unrelated to the target conspiracy while listening to a valid wiretap, without having complied with the Wiretap Act requirements of probable cause and necessity as to those specific speakers. However, the agents must discontinue monitoring the wiretap once they know or reasonably should know that the phone calls only involved speakers outside the target conspiracy. Cf. Maryland v. Garrison, 480 U.S. 79, 87 (1987).

Case was vacated and remanded for fact-finding on the issue of when agents knew or should have known that the phone conversations did not involve Escamilla and his coconspirators. 

The Exclusionary Rule is Full of Streiff

Let’s take further stock of last term’s U.S. Supreme Court decision in Utah v. Strieff, 136 SC 2056 (16) [See the July, 2016 Poop Sheet].

The Court in Strieff held that an investigatory stop was unlawful, the discovery of an outstanding arrest warrant on a traffic ticket was sufficiently “attenuated” that a search incident to arrest was valid. Justice Thomas, writing for the majority, did so by analyzing the “three factors” explicated in Brown v. Illinois, 422 US.590 (1975).

It should be noted that legal analysts are split on whether “Three-Finger Brown” is truly that doctrinal. (That’s my own designation, by the way. There was a famous baseball pitcher named Mordecai “Three Finger” Brown, thus called that because a farming accident severed most of the index finger of his right hand. However, the resulting grip on a baseball enabled him to put extra spin on his curve. He was elected to the Baseball Hall of Fame in 1949.)

Orin Kerr, at SCOTUSblog (June 20, 2016), had this to say:

The Court presents the Brown three-factor test as if it were obviously the settled doctrine a court should apply. It’s worth noting that this is hardly so.

First of all, Brown itself does not say that the attenuation doctrine is a three-factor test. Brown suggests more of a “totality of the circumstances” analysis, with no exclusive list of considerations. As Brown stresses, there is no “talismanic test” for attenuation. Second, post-Brown attenuation cases have not focused on Brown or applied a three-factor test.

Given that, it’s a little odd that the Court proceeds through the three factors from Brown in an almost mathematical way. Two factors are strongly against suppression and only one is for it, the Court rules, so on balance the evidence isn’t suppressed.

***

All the Justices agreed on how to apply the first factor, which concerns the temporal proximity of the violation. The evidence was discovered just minutes after the illegal stop, so that weighs pretty clearly in favor of Edward Strieff. The Justices then divided on the remaining two factors, and I think the majority’s argument on these points was unpersuasive.

Consider the second factor, which looks to whether “intervening circumstances” made the discovery of evidence remote from the violation. The Court concludes that the officer’s discovery of the warrant was an “intervening circumstance” that was “entirely unconnected with the stop.” …

[Re: the] Court’s application of the third Brown factor, the purpose and flagrancy of the violation. Although the majority opinion nowhere notes it, the government has the burden of proof in establishing attenuation. (Note the holding of Brown: “We conclude that the State failed to sustain the burden of showing that the evidence in question was admissible under Wong Sun.”) And in recent decades, the Court has gone out of its way to make clear that an officer’s intent is completely irrelevant to whether the Fourth Amendment was violated. That means that there is usually nothing in the record relevant to the officer’s purpose. How can the government meet its burden when there is no evidence in the record?

The majority largely fills this in, concluding that the Fourth Amendment violation was “at most negligent” and was based on “good-faith mistakes.”

***

I think Justice Kagan is right in her dissent that the majority’s approach practically invites police officers to make illegal stops. If you’re a police officer and you want to search a suspect to help investigate a crime, you just need to stop the suspect and ask for ID to see if he has an outstanding warrant. If there’s no warrant out for his arrest, you can let him go and he’s extremely unlikely to sue. If there is a warrant, you can arrest him, search him incident to arrest, and question him later; the courts will allow that evidence because you were acting in good faith by trying to investigate the crime. The police academies won’t teach officers to violate the law, of course. At the margins, though, officers will be encouraged to treat almost anything as reasonable suspicion to justify a stop. If in doubt, make the stop.

JSB: Much hangs in the balance now, of course. A 4-4 Court is split along discernable lines. Kerr noted that the socially-progressive Part IV of Justice Sotomayor’s dissent was not joined by any other justice. But as Prof. Lawrence Rosenthal notes in his SCOTUS post of Sept. 9, 2016, pondering the future of the 4th Amendment after Scalia:

Whether a future Court embraces Fourth Amendment originalism portends less for how any particular case will be decided than it does for the methodology of constitutional adjudication. The next Justice will decide whether the Court will struggle overtly with the difficult balance between liberty and order, or continue the even more fraught business of trying to apply eighteenth-century legal doctrine and expectations to twenty-first-century problems.

Strieff, ___ US ___, 136 SC 2056, ___ LE2 ___ (16) #14–1373:

Narcotics detective, Fackrell, conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing Strieff leave the residence, Fackrell detained Strieff at a parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.

The United States Supreme Court holds that while the investigatory stop was unlawful, the . The discovery of the warrant was sufficiently “attenuated” that a search incident to arrest was valid.

According to Justice Thomas, writing for the majority, the attenuation exception is as follows:

Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”

The opinion then analyzes in detail the “three factors” explicated in Brown v. Illinois, 422 US.590 (1975). Prosecution wins.

Much to the displeasure of Justice Sotomayor, who wrote in dissent:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic war­ rants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

 

Warrantless DUI Breath Test Valid Search Incident to Arrest. Blood Test is Not.

Birchfield, ___ US ___, 136 SC 2160, ___ LE2 ___ (16) #14–1468:

The Court undertook a balancing analysis, weighing the degree of intrusiveness against the governmental interests. Breath tests have “negligible” physical intrusion. Not so blood tests. The government’s need for BAC evidence is “very important.” Therefore:

Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.

We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.

The Court went on to hold that in states where test refusal can result in criminal sanctions, “implied consent” does not apply to the blood draw situation.

Mr. Al Menaster has observed that “The big question is what this means for Cal., which does not make it a crime to refuse but does provide for an enhancement.” There is certainly “an argument that the rule preventing refusal of a warrantless blood test from being a crime also bars imposing additional punishment for that refusal. The problem is that typically the officer offers the defendant a breath or blood test, and the refusal is generic.” Thus, a defendant would need “a specific refusal to take a blood test to fit into this case.”

Probation Search Did Not Cover Garage-Room Where Defendant Was Living

CARREON, ___ CA4 ___, ___ CR3 ___ (16) #H040632

Officers conducted a probation search of a residence where Def. was living with her son in an attached garage. They searched the garage unit, including drawers and a purse. In the purse was meth.

Def’s motion to suppress was denied. The Court of Appeal, per Rushing, P. J., reversed.

A probation search is based upon consent. But the garage/room her was in use by what was effectively an “overnight guest.” Does such a person have a legitimate expectation of privacy?

Yes.

The presence of an overnight guest should prompt a searching officer to pause and consider the guest’s privacy expectations before intruding into an area assigned to the guest. In our opinion, it flouts widely held social expectations to define joint access as simply having the physical ability to open a door, walk into a room, and open drawers.

Held:

We conclude that the prosecution did not present sufficient evidence to justify a warrantless search or an objectively reasonable belief that the probationer had authority over the contents of either the drawers or the purse in defendant’s bedroom.

Steele, ___ CA4 ___, 201 CR3 363 (16) # C077040:

Deputy sheriffs observed two vehicles traveling together. The lead vehicle was a dark colored SUV. The second was a white Jeep.

The deputies followed the two vehicles to a rural dead end road with no streetlights. They ran a check on the license plates. Dispatch informed the deputies that there was a felony arrest warrant for the registered owner of the lead vehicle. The deputies decided to conduct an enforcement stop on the lead vehicle based on the expired registration and the arrest warrant. They were not aware of any Vehicle Code violations associated with the second vehicle.

The deputies activated their emergency lights. Under People v. Brown, 61 C4 968, 972 (15), this is a detention because a reasonable person under the circumstances would not have felt free to leave.

The deputies approached the second vehicle, the Jeep, first, for “officer safety.” As one deputy testified, “As law enforcement officers, we are not going to walk past a vehicle in the middle of the night with a subject in it.”

Def was in the driver’s seat of the Jeep. Upon approach, a deputy smelled marijuana wafting forth. They asked Def to exit the vehicle. They found a bag of marijuana and two baggies of methamphetamine.

Def. moved to suppress. Denied. The Court of Appeal, per Mauro, J., affirmed.

Yes, this was a detention per Brown. But the facts in this case had a justification.

Here, as in Glaser, supra, 11 Cal.4th 354, Maryland v. Wilson, supra, 519 U.S. 408, and Taylor, supra, 41 P.3d 681, the initial approach of the deputies to defendant’s vehicle was not for the purpose of arresting defendant or for an investigation directed at him. The deputies stopped the lead vehicle for an expired registration and a felony arrest warrant. (People v. Saunders (2006) 38 Cal.4th 1129, 1135 [officer may stop a vehicle and detain a driver when there is articulable and reasonable suspicion that an automobile is not registered].) They did not have any information that defendant’s vehicle violated the Vehicle Code. However, while attempting to complete a lawful detention of the lead vehicle, the deputies were forced to either contact defendant because his vehicle was parked directly behind the lead vehicle or walk past defendant’s vehicle without knowing whether the occupants of that vehicle might pose a danger to the deputies.

The circumstances warranted caution by the deputies. It was dark. The deputies were at the end of a driveway, not visible from the highway. The lead and second vehicles appeared to be travelling together and the deputies did not know the identities of the drivers. There was a risk defendant could come up behind the deputies while they contacted the lead vehicle. As the United States Supreme Court has recognized, “traffic stops are ‘especially fraught with danger to police officers.’ [Citation.] ‘ “The risk of harm to both the police and the occupants [of a stopped vehicle] is minimized,” ’ . . . ‘ “if the officers routinely exercise unquestioned command of the situation.” ’ ” (Arizona v. Johnson (2009) 555 U.S. 323, 330-331 [172 L.Ed.2d 694, 702] [also stating an officer is not constitutionally required to give the passenger of a stopped vehicle an opportunity to depart the scene after exiting a vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her]; see Brendlin v. California (2007) 551 U.S. 249, 258 [168 L.Ed.2d 132, 140] [it is reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize the officer’s safety].) Officer safety is a weighty public interest warranting a brief detention of defendant to assure that defendant did not present a danger to the deputies while they approached and investigated the lead vehicle and its occupants.

Police Can Lie About Basis of Auto Stop if the Stop is Objectively Reasonable

Magallon-Lopez, 817 F3 671 (9 Cir. 16):

Officers investigating an interstate drug-trafficking ring learned through wiretap intercepts that a shipment of methamphetamine would be traveling by car from Washington to Minnesota. The vehicle would have Washington plates. They stopped a Volkswagen Passat en route in Montana; the car belonged to appellant Hector Magallon- Lopez, who was driving. Although the officer had not observed any traffic violations, he told Magallon-Lopez that the reason for the stop was Magallon- Lopez’s failure to signal properly before changing lanes. The officer knew this was not the real reason for the stop, but he did not want to disclose at that point the true nature of the investigation.

A drug sniffing dog was brought to the scene and hit on the car, which was then seized. Two pounds of meth under the trunk.

Def. moved to suppress. Not because of lack of reasonable suspicion to stop, but because the officer lied about the reason for the stop.

No dice, says the court:

That the officer lied about seeing Magallon-Lopez make an illegal lane change does not call into question the legality of the stop. The standard for determining whether probable cause or reasonable suspicion exists is an objective one; it does not turn either on the subjective thought processes of the officer or on whether the officer is truthful about the reason for the stop. If, for example, the facts provide probable cause or reasonable suspicion to justify a traffic stop, the stop is lawful even if the officer made the stop only because he wished to investigate a more serious offense. Whren v. United States, 517 U.S. 806, 812–13 (1996). Likewise, if the facts support probable cause to arrest for one offense, the arrest is lawful even if the officer invoked, as the basis for the arrest, a different offense as to which probable cause was lacking. Devenpeck v. Alford, 543 U.S. 146, 153–55 (2004); United States v. Ramirez, 473 F.3d 1026, 1030–31 & n.2 (9th Cir. 2007).

Search of Student’s Cell Phone Was Justified

In re Raphael C., 245 CA4 1288, 200 CR3 305 (16) #A143376

Firearm and magazine found in trash can on high school campus. Administrators suspected Minor’s involvement, and in the course of questioning him, they seized and searched his cell phone.

Interspersed with the text messages on the phone were a number of digital images, including a photograph of Minor holding what appeared to be the firearm found on campus. When the prosecution sought to use these images as evidence in the proceeding below, Minor unsuccessfully moved to suppress them.

The juvenile court found Minor had possessed an assault weapon, and it declared him a ward of the juvenile court.

Suppression denied. The Court of Appeal, per Jones, P.J., affirmed.

Here, school officials were confronted by a situation in which a loaded firearm had been discovered on school property. They were concerned Minor could be using his cell phone to communicate with students who might possess another firearm or weapon the officials did not know about. In these circumstances, “ ‘[t]he special need for an immediate response to behavior that threatens . . . the safety of schoolchildren and teachers . . . justifies the Court in excepting school searches from the warrant and probable-cause requirement, and in applying a standard determined by balancing the relevant interests.’ ”   (In re J.D., supra, 225 Cal.App.4th at p. 715, quoting T.L.O., supra, 469 U.S. at p. 353 (conc. opn. of Blackmun, J.).)

LARA, ___ F3 ___ (9 Cir. 16) #14-50120

Lara was subject to a probation search condition that required him to submit his “person and property, including any residence, premises, container or vehicle” to search and seizure “without a warrant, probable cause, or reasonable suspicion.”

Lara’s probation officers went to his residence to conduct a search. They had Lara sit on the couch. One of the Offs saw Lara’s cell phone sitting on a table and decided to give it a look see. He did not ask for permission. The other Off later testified that it is the department’s policy to search a cell phone when officers visit a probationer, even if the probationer objects.

Off. reviewed the most recently sent text messages on Lara’s cell phone and discovered messages containing three photographs of a semiautomatic handgun lying on a bed. The pictures had been sent to “Al,” who responded, asking if the gun was “clean.” Lara replied, “yup.” Al followed up by asking, “What is the lowest you will take for it?” and “How much?”

Oops.

Off. handcuffed Lara, and he and the other Off. searched Lara’s house and car for the gun. They did not find it, but they did find a folding knife, the possession of which violated the terms of Lara’s probation. They arrested Lara for the knife brought the cell phone to the Orange County Regional Computer Forensics Lab.

Lab personnel found GPS data embedded in the photographs of the gun and thereby determined the address where they were taken.

CSI!

Investigation revealed the location to be the home of Lara’s mother.

Lara was charged with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the gun and ammunition on the ground that it had been found as a result of illegal searches of his cell phone by Officer Ortiz and the lab.

Motion denied. The 9th Circuit Court of Appeals reversed.

First, the court held that probationers accepting a 4th Amendment waiver do not thereby waive all their rights. The search itself must meet the standard of reasonableness. That requires a balancing of interests.

The probationer’s privacy interest in his cell phone data won out.

“We recognize that his privacy interest was somewhat diminished in light of Lara’s status as a probationer. But it was not diminished or waived because he accepted as a condition of his probation a clear and unequivocal search provision authorizing cell phone searches (he did not) or because he subscribed to cell phone service using a different first name (he did).”

Warrantless Blood Draw of Unconscious DUI Suspect Violates 4th  

*Arredondo, 245 CA4 186, 199 CR3 563 (16): #H040980  *[NOTE: Review Gr. Cal. Sup. Ct.]

Def drove his Jeep Cherokee away from a party, where the booze was flowing, with six passengers. One of the passengers testified that after visiting a liquor store, Def began to “drive crazy.” He was, and flipped the Jeep over. Three of the passengers scurried into the night.

Two of the remaining passengers were hurt, one with a brain injury. Def was unconscious, and was taken to a medical center. After an hour and a half of treatment, during which Def was unconscious, the Off had a blood draw taken. At no time did he seek a telephonic search warrant.

Def. moved to suppress the blood evidence. Motion was denied on the grounds that he had given his consent. How could he give his consent when he was out cold? Why, the California Implied Consent Law, Vehicle Code section 23612 (§ 23612), subdivisions (a)(1)(A) and (a)(5).

The Court of Appeal, per Rushing, P.J., but only on the grounds of the Good Faith Exception. What the court says about warrantless blood draws from the unconscious is another matter.

Can’t do it. Not even under the implied consent statute.

First of all, you’ve got to love a DUI opinion in 2016 citing 1803’s marquee decision, Marbury v. Madison 5 U.S. 137, and that haymaker from 1824, Gibbons v. Ogden, 22 U.S. 1!

If imputed consent is to be held sufficient to sustain a warrantless search, the holding will have to come from a court other than this one. We fear the Fourth Amendment could be left in tatters by a rule empowering the state to predicate a search on conduct that does not in fact constitute a manifestation of consent but is merely “deemed” to do so by legislative fiat. It is far from implausible, for example, that a legislative body—state or federal—might decree, in the name of public safety or national security, that the use of the mails, or the phone lines, or the internet—all of which rely to a greater or lesser extent on publicly owned property or facilities or publicly provided services—constitutes consent to search the contents of all communications thus conducted. Consent to search homes might be “deemed” to be given by anyone taking advantage of various publicly provided or subsidized privileges—like use of public utilities, libraries, or schools. Consent to search the person might be “deemed” to be given by use of a public sidewalk or occupancy of a public place.

As mentioned, the court went on to hold thatt the blood evidence was admissible under the Good Faith exception of U.S. v. Leon, 468 US 897 (84). That’s because this is the first decision to hold that the implied consent law is not a sufficient ground for a warrantless blood draw.

And here’s the kicker (not from the court, but from the Poop Sheet’s editorial board): After this decision, law enforcement cannot claim “good faith” under similar circumstances. Why not? Because of the famous footnote 20 in Leon:

The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits. [468 US 897, ftn. 20].

Once an issue is settled by the appellate courts, it is the law that a reasonably well-trained officer should know about.

 Below are three decisions on probation search conditions and juvenile cell phones. All three are from the First Appellate District, but three different divisions. I’m indebted to the legendary Al Menaster for help with the squibs.

• In re Patrick F., 242 CA4 104, 194 CR3 847 (15):

This is a case on juvenile probation conditions requiring the delinquent ward of the court to submit to searches of his electronic devices and social media sites, including passwords.

Patrick F. argued that the search condition imposed by the court was invalid under Lent, 15 C3 481 (75) because it had no relationship to the underlying offense, related to conduct that is not illegal, and was not reasonably related to deterring future criminal activity. He also claimed the condition was unconstitutionally overbroad and poses a risk of illegal eavesdropping.

The court summarized three previous cases, then reached its conclusion:

In In re Erica R. (2015) 240 Cal.App.4th 907, 910–911, 192 Cal.Rptr.3d 919 (Erica R.), Division Two of this court held the condition was invalid under Lent, because it had no relationship to the commitment offense of misdemeanor possession of Ecstasy. Having reached this conclusion, the court found it unnecessary to address the defendant’s constitutional challenge or her claim the probation condition would allow illegal eavesdropping.

In In re Malik J. (2015) 240 Cal.App.4th 896, 899–900, 193 Cal.Rptr.3d 370 (Malik J.), Division Three found the condition to be unconstitutionally overbroad in a case where the defendant’s juvenile probation had been violated based on his possession of marijuana and his commission of three robberies, one of which involved an iPhone. The court in Malik J. modified the search condition to eliminate the requirement that the defendant supply passwords to his social media sites, but allowed a search of the phone itself after it had been disabled from any Internet or cellular connection for the purpose of determining whether it had been stolen.

Most recently, in In re Ricardo P. (2015) 241 Cal.App.4th 676, 193 Cal.Rptr.3d 883 (Ricardo P.) .. .[the] court concluded that although an electronics search condition was valid under Lent because it was reasonably related to monitoring the defendant’s future criminality, the condition was overbroad in allowing the probation officer access to data that was not reasonably likely to reveal whether the defendant was using drugs….

Having had the benefit of our colleagues’ intellectual legwork and thoughtful analyses, we are persuaded by the rationale of Ricardo P., the circumstances of which are the most similar to the case before us. We conclude the challenged electronics search condition, though reasonable under Lent, was overbroad as drafted, and order it modified accordingly. We reject appellant’s contention that the condition must be stricken in its entirety due to the risk of unlawful eavesdropping on third parties.

The minor committed this offense to get money for marijuana, and “access to a teen’s electronic communications and social media can be a useful tool in tracking and monitoring drug transactions, drug usage and communications with other individuals associated with drugs.”

• In re J.B., 242 CA4 749, 193 CR3 589 (15):

The Court of Appeal here strikes down the electronic devices and social media probation condition, since there was “no evidence connecting the juvenile’s electronic device or social media usage to his offense or to a risk of future criminal conduct.” It disagrees with Patrick F.:

In Patrick F. the court limited the search condition to “a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts.” Whether either of these limitations is any limitation at all seems highly doubtful. In Riley v. California, supra, 573 U.S. at p. ––––, 134 S.Ct. at p. 2492, the United States Supreme Court observed that an Arizona v. Gant (2009) 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 standard allowing a warrantless search of an arrestee’s cell phone whenever it is reasonable to believe that the phone contains evidence of the crime of arrest “would prove no practical limit at all when it comes to cell phone searches.” The Supreme Court also opined that “a rule that would restrict the scope of a cell phone search to those areas of the phone where an officer reasonably believes that information relevant to the crime, the arrestee’s identity, or officer safety will be discovered … would again impose few meaningful constraints on officers. The proposed categories would sweep in a great deal of information, and officers would not always be able to discern in advance what information would be found where.” (Riley v. California, supra, at p. ––––, 134 S.Ct. at p. 2492.)

• In re Alexandro R., A144398

And now this panel comes along, agrees with Ricardo P. and disagrees with J.B.

We are unpersuaded by the analysis of J.B. for two reasons. First, in adopting a generic test of reasonableness, J.B. disregarded the actual holding of Olguin [45 C4 375 (08)]. In that case, the Supreme Court’s conclusion that the probation condition reasonably related to future criminal conduct was unrelated to any connection between the condition and the probationer’s past or future crimes. On the contrary, the probationer’s keeping of pets was entirely unrelated to any crime he did or likely would commit. Rather, Olguin concluded a probation condition is reasonably related to future criminal conduct if it permits more effective monitoring of the probationer’s compliance with other probation conditions.3 (Olguin, supra, 45 Cal.4th at pp. 380–381, 87 Cal.Rptr.3d 199, 198 P.3d 1.) Nothing more was required.

Second, contrary to the impression created by J.B., Olguin did not announce a generic test of reasonableness for probation conditions.

Another Pre-McNeely Blood Draw Case

• Jimenez, 242 CA4 1337, ___ CR3 ___ (15): #F067846

Def., driving a truck UI, plowed into a fire hydrant and then a yard, and into two people who died. He told responding officer that he was “coming down off of speed.” He also mentioned he had “blacked out” until he crashed into the hydrant.

Def. was transported to a local hospital, and a blood draw was ordered. Def. was not asked for, nor did he give, consent. The test proved positive for amphetamine and marijuana

Def. moved to suppress the blood evidence, citing McNeely, 569 U.S. ___ (13). When the blood draw was taken, however, McNeely had not been decided and the controlling authority was Schmerber, 384 US 757 (66). The motion was denied.

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

Here, the record shows defendant, after having run over two pedestrians with his truck, informed a hospital nurse he “was withdrawing from methamphetamine.” Paglia, who was present, overheard this remark. In “objectively reasonable reliance” (Davis, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2423]) on Schmerber, then still authoritative, Paglia could “reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence’” (Schmerber, supra, 384 U.S. at p. 770), i.e., the natural evanescence of methamphetamine in the bloodstream. His request for a blood draw to secure evidence of defendant’s drug intoxication fell “within the parameters of the ‘good faith’ exception to the exclusionary rule.” (Rossetti, supra, 230 Cal.App.4th at p. 1076.) Therefore, denial of the motion to suppress was proper.

• LINN, 241 CA4 46, 193 CR3 342 (15):

Napa motorcycle cop observed a Ford Expedition with a driver and passenger, and the passenger holding a lit cigarette out an open window. Cop “just saw a quick flick of the fingers, which appeared to be he was flicking the ashes out the window.” He understood the passenger’s action violated the Vehicle Code.

He followed the Expedition until it parked. He stopped about three feet from the driver side door and got off his motorcycle as the defendant driver and the passenger were getting out of the Expedition.

Defendant testified that she parked her Ford Expedition and was getting out when she first saw Off, who was sitting on a motorcycle parked right next to her car. The first thing he said to her was that he “noticed my passenger flicking ashes out the window.” He asked for her driver’s license. She was smoking and drinking a can of soda, and Helfrich “asked me to put [the cigarette] out” and “put [the can] down.” He did not turn on his emergency lights or siren, use a blow horn, raise his voice or block her path.

Def. voluntarily offered her license to Off. He took it and held it in his hand as he called dispatch and ran a record check on Def. It was about this time that he notice an odor of alcohol on Def., which led to her arrest for DUI.

The trial court granted Def’s 1538.5 motion, but the appellate division reversed, concluding defendant’s encounter with the police officer who arrested her was consensual up to the time that he reasonably suspected she had been driving under the influence.

The Court of Appeal, per Stewart, J., reverses the appellate division and affirms the trial court.

[S]ubstantial evidence indicates that the officer’s actions reviewed in their totality constituted an assertion of his coercive authority before he had any reasonable suspicion to detain defendant. These actions included his stopping within three feet of defendant as she exited her vehicle to, as he told her, talk with her about her passenger’s flicking ashes out of the vehicle’s window as defendant drove, asking her for her driver’s license without explanation as he commanded her to put out her cigarette and put down her soda can, retaining her driver’s license as he conducted an unexplained record check, and questioning of the passenger for personal details that the officer recorded on a form. No objectively reasonable person would believe she was free to end this encounter under the totality of these circumstances, regardless of the officer’s polite demeanor and relatively low-key approach.

People Presented No Evidence That Officer Knew Terms and Limits of Probation Search Clause

• ROMEO, 240 CA4 931, 193 CR3 96 (15):

Offs conducted a warrantless search on a residence where two people, subject to a probation search clause, lived. Def. lived in the attached garage. Off. observed, in plain view on top of the desk, a clear Ziploc baggie containing 2.444 grams of methamphetamine. He also recovered a small amount of marijuana, wrapped in cellophane, from a cigarette box on top of the desk, as well as six hypodermic needles from a toolbox in the garage.

Def. and the two residents were Mirandized. Def. said he was staying in the garage and that the methamphetamine, marijuana and hypodermic needles found in the garage were his. Def showed signs of being UI, was taken to the station, and his blood tested positive for methamphetamine and opiates.

Def’s 1538.5 motion was denied. The Court of Appeal, per Streeter, J., reversed.

The court first dealt with a Harvey-Madden issue. The testifying Off. said he relied on his familiarity with the probationers, and a law enforcement computer database to establish the residents were indeed on probation. The court holds this is “slight” but enough to justify the Off’s belief in the probation clause.

But that does not end the inquiry. Whether the search itself is reasonable must be based on the circumstances known to the officer when the search is conducted.

However, at the 1538.5 hearing the People did not elicit any testimony from the Off. that he knew the terms or limits of the probation search clause itself.

We conclude that, on this record, the search … cannot be upheld. We are asked to sustain the warrantless search of a residence without any showing that the searching officers knew that the target of their search, the residence itself, fell within the scope of a probation search clause. A probation search carried out by police heedless of any limits in the operative search clause might turn out to be lawful or unlawful—depending on an after-the-fact check. (See Hoeninghaus, supra, 120 Cal.App.4th at p. 1196 [“If, as the People argue, police did not need to know that their authority to search defendant was limited to searching for drugs, then police could search him without any limitation and without any grounds to believe the search was reasonable; and if, after learning about the condition, they claimed that they were looking for drugs, the search could be upheld under the consent exception”].) This is the “search first, justify later” approach that the Supreme Court has consistently decried, while pointing out that it is particularly problematic where third-party non-probationers are involved.

But Hold the Phone…

Deputy Did Not Have Knowledge of Probation Search Condition, But His “Experience” Was Enough

• Wolfgang, 240 CA4 1268, 193 CR3 256 (15):

Investigating suspicious activity, Deputy knocked on door of a modular home. Def. answered and gave deputy his driver’s license. Deputy ran it through dispatch and was told Def. was on probation for brandishing a weapon. Deputy did not ask dispatch and was not told whether Def’s probation included a search condition. But deputy explained that, based on his training and experience as a 10-year veteran of law enforcement, when a person is on probation for a weapons violation, they have search conditions.

So he searched, and found a loaded .22 rifle. One sticky wicket: Def was not on probation for brandishing a weapon. It was for something else.

Understandably, Def. moved to suppress. Denied. The Court of Appeal, per Ramirez, PjJ., affirmed.

Black letter law is that an officer must know the terms of a search condition before searching (see ROMEO, above). But here the court allows the deputy’s “experience” to fill the gap.

There’s an “even if” analysis that says if this wasn’t a valid probation search, it can still be upheld. I don’t believe the court’s rationale can square with SANDERS, 31 C4 318 or ROBLES, 23 C4 739.

California Supreme Court

• Brown, 61 C4 968, 190 CR3 583, 353 P3 305 (15):

You’re sitting in a car when a law enforcement vehicle pulls up behind you and puts on its emergency lights. Would you, being a reasonable person, feel free to drive away?

That was the question in this case. A deputy sheriff was dispatched to investigate a reported fight. He saw Brown’s car coming toward him and yelled at Brown, asking if he saw anything. Brown didn’t respond and drove on.

Which raised the deputy’s suspicions. After leaving the scene, the deputy saw Brown’s car parked a short distance away. He activated his overhead emergency lights and pulled up behind the car. He approached and talked to Brown, who admitted to drinking and being involved in the fight. Brown was charged with DUI.

Brown moved to suppress evidence of his physical condition, statements, and breath test results as the fruits of an unlawful detention. Denied.

The Court of Appeal affirmed Brown’s conviction. The California Supreme Court took on the question of whether the flashing of the overhead emergency lights constitutes a detention. The question is, would a reasonable person in that situation feel free to just take off?

The Court of Appeal held that “when a vehicle is already stopped, without police action, merely activating emergency lights on a police vehicle, without more, does not constitute a seizure within the Fourth Amendment.”

Nay, not so, says the Supreme Court of California:

In People v. Bailey (1985) 176 Cal.App.3d 402 an officer stopped behind the defendant’s parked car and activated his emergency lights. (Id. at p. 404.) Applying the test from United States v. Mendenhall (1980) 446 U.S. 544, 554, the court concluded a detention had occurred because “[a] reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer. Any reasonable person in a similar situation would expect that if he drove off, the officer would respond by following with red light on and siren sounding in order to accomplish control of the individual.” (Bailey, at pp. 405-406.)

The court, however, adds a little wrinkle to the mix:

To be clear, we do not adopt a bright-line rule that an officer’s use of emergency lights in close proximity to a parked car will always constitute a detention of the occupants. “[A]ny assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account ‘ “all of the circumstances surrounding the incident” ’ in each individual case.” (Chesternut, supra, 486 U.S. at p. 572, quoting Delgado, supra, 466 U.S. at p. 215.) As an example, a motorist whose car had broken down on the highway might reasonably perceive an officer’s use of emergency lights as signaling that the officer has stopped to render aid or to warn oncoming traffic of a hazard, rather than to investigate crime. Ambiguous circumstances may be clarified by whether other cars are nearby or by the officer’s conduct when approaching. (See Wilson v. Superior Court (1983) 34 Cal.3d 777, 791 & fn. 11; People v. Garry (2007) 156 Cal.App.4th 1100, 1110-1112.) Here, no circumstances would have conveyed to a reasonable person that Deputy Geasland was doing anything other than effecting a detention. Under the totality of these circumstances, Brown was detained when Geasland stopped behind the parked car and turned on his emergency lights.

So that’s the rule. Now the question becomes were there reasonable grounds for this particular detention? The court holds there were.

The circumstances here include a reliable citizen’s report of a violent fight potentially involving a firearm, the deputy’s very quick response time, and Brown’s presence near the scene of the fight in the otherwise vacant alley. These facts justified this brief detention.

The Stephanie Lazarus S-Ws Supported by Probable Cause, Good Faith  

• Lazarus, 238 CA4 734, 190 CR3 195 (15):

In December of 2004, members of LAPD’s cold case unit decided to re-opened a murder case. Back in 1986 a woman named Sheri Rasmussen was killed by a couple of slugs from a .38. No one was ever arrested for the murder. But the coroner did manage to preserve some DNA which came from a bite mark on the victim’s arm.

LAPD conducted a new DNA test, produced a profile, fed it into a national database, and got bupkis. A detective then went through all the potential suspects who were interviewed, and lo and behold, one of them was a fellow LAPD detective, working, in fact, right across the hall – Stephanie Lazarus.

Detectives surreptitiously got a discarded drinking cup and straw, ran a test, and bingo—Lazarus’ DNA matched the bite mark DNA.

Now what? The detectives did not rush in and arrest her. They wanted more. And didn’t want her to know she was a suspect. So they took a couple of weeks to rehearse their interrogation of her, then used a ruse. They asked her to come to an official interview room for a sit down, claiming they needed her art-theft expertise on a case. The real reason for the request was so she would (as all cops must) give up her gun before entering the interview room.

Once there the interrogation unfolded, getting more pointed as it went along. Lazarus did not realize she was a suspect until well along in the interview. She was never in custody, was always free to leave.

This interrogation, by the way, can be viewed on YouTube. Lazarus walked out of the interview room, stating she needed to talk to a lawyer.

Two search warrants were issued for Lazarus’ residence. The first warrant sought electronically and digitally stored material, documents, and records related to the homicide, including letters, diaries, journals, writings, newspaper articles, books, correspondence, greeting cards, photographs. The second warrant gave permission to search the “computers, storage media, computer hardware and digital evidence” seized pursuant to the first warrant, including “[email], internet browsing histories, cached information, partially deleted files, records, receipts, screen captures, photographs, logs, [and] printouts.”

Lazarus moved to suppress, based on stale info in the affidavits and overbreadth. The Court of Appeal, per Manella, J., affirmed.

The warrants were supported by probable cause and were not overbroad, based on the nature of the crime and the probabilities of finding evidence thereof. For good measure, the court held that the Good Faith exception would apply here, as a reasonably well-trained officer would not have occasion to distrust the magistrate’s finding of probable cause.

• Campuzano, 237 CA4 Supp.14, 188 CR3 587 (15) #CA256406

In Heien v. North Carolina (2014) ––– U.S. ––––, 135 S.Ct. 530, 190 L.Ed.2d 475, the Supreme Court held that an objectively reasonable mistake of law can excuse an otherwise illegal detention. Meaning the statute or ordinance in question has to be so ambiguous that a reasonable police officer could genuinely be confused about its reach.

Well, such an ordinance was at issue in a case decided by the San Diego Appellate Division. The facts:

The defendant was straddling his bicycle and operating it at a “very slow, walking speed” on the sidewalk of a business district, alongside of a female companion who was walking. Two police officers approached and detained him at the corner for “riding on a bicycle in a business district” in violation of San Diego Municipal Code subdivision (a) of section 84.09.

The defendant became “agitated, confrontational and belligerent.” Off. thought he was under the influence, cuffed him, and had him sit on the police car bumper. He was eventually arrested for being on drugs.

Def. moved to suppress, challenging the detention, arguing that he did not violate the ordinance:

San Diego Municipal Code section 84.09 (Bicycle Riding Restricted) provides:

(a) No person shall operate a bicycle upon any sidewalk fronting any commercial business establishment unless official signs are posted authorizing such use.

The officers here interpreted the ordinance expansively, as applying to the whole block. But the court held that the ordinance was limited only to that portion of the sidewalk actually fronting a physical establishment.

In the instant matter, the officers’ interpretation of San Diego Municipal Code section 84.09, subdivision (a) was a mistake of law. The focus of our inquiry is whether the officer’s mistake of law was objectively reasonable under the facts of the case to support the reasonable cause to stop and detain the defendant. (Heien v. North Carolina (2014) ––– U.S. ––––, 135 S.Ct. 530, 190 L.Ed.2d 475.) In this opinion of first impression on the interpretation of the municipal ordinance, we discuss the expansive and narrow interpretations of the statute. There was no prior guidance for the officers in interpreting the ordinance. Under the facts of this case, we find that it was objectively reasonable for the officer to read the ordinance expansively8, giving rise to a reasonable cause to stop and detain the defendant for a violation of San Diego Municipal Code section 84.09, subdivision (a), an infraction. Further, there was probable cause to arrest him for that infraction. (See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549; People v. McKay (2002) 27 Cal.4th 601, 607, 117 Cal.Rptr.2d 236, 41 P.3d 59; People v. Gomez (2004) 117 Cal.App.4th 531, 538–539, 12 Cal.Rptr.3d 398.)

Under the totality of the circumstances, there was no prolonged detention because immediately after the stop and detention for the infraction, the officer observed the defendant’s objective symptoms of drug intoxication and had probable cause to arrest the defendant for being under the influence of a controlled substance.

United States Supreme Court

RODRIGUEZ, ___ US ___, 135 SC 1609, ___ LE3 ___ (15) #13-9972

A Nebraska cop, Stuble, pulled over a Mercury Mountaineer for driving on the shoulder. Rodriguez was the driver. After Rodriguez identified himself, Struble asked him why he had driven onto the shoulder. Rodriguez replied that he had swerved to avoid a pothole. Struble then gathered Rodriguez’s license, registration, and proof of insurance, and asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to do so, and Struble answered that he was not. Rodriguez decided to wait in his own vehicle.

After running the documents, Stuble issued a “warning ticket” to Rodriguez. With the purpose of the stop now over, Stuble asked for permission to have a dog sniff the car. Rodriguez refused. Struble then ordered Rodriguez out of the vehicle and to the patrol car. Seven minutes later a deputy sheriff with a drug sniffing dog. Struble led the dog around the car and, Bark!, the dog alerted. The cops recovered a big bag of meth.

The United States Supreme Court, 6-3, holds that this is a violation of the 4th Amendment.

The issue is simple: once the purpose of traffic stop has been satisfied, is the detainee free to go? Or can the police get away with a “slight” delay in order to conduct further investigation?

From the majority opinion by Justice Ginsburg:

Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission”—to address the traffic violation that warranted the stop…Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.”

Kennedy, Thomas, and Alito dissented. Ginsburg addressed one point Alito brings up:

An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But contrary to JUSTICE ALITO’s suggestion, … he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.

California Court of Appeal

Wiretap of Cell Phone Valid

Sedillo, 235 CA41037,185 CR3 907 (15)

Defendant was convicted of five counts of attempted murder and one count of shooting at an inhabited dwelling. The convictions arose out of a gang-related shooting in 1992. The actual shooter, was convicted in 1995 of murder and attempted murder. Defendant was the driver of the getaway car, and although witnesses identified defendant from a photo array, no witness was able to identify defendant at a live lineup, and as a result, defendant was not charged in connection with the crime. In 2010, a wiretap of defendant’s phone in an unrelated matter recorded statements in which defendant admitted her involvement in the December 1, 1992 murder, and in May 2010, defendant was charged in connection with the shooting.

On appeal, Defendant challenged the validity of the wiretap of her cell phone.

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

A wiretap must be supported by a finding of probable cause, necessity, and minimization. A trial court’s determination that the documentation supporting the wiretap authorization application is sufficient is entitled to substantial deference and is reviewed for abuse of discretion.