Bell's Compendium

• Harris ___ CA4 ___, ___ CR3 ___ (15) #E060962

In Missouri v. McNeely (2013) 569 U.S. ___, 133 S.Ct. 1552, the United States Supreme Court held that, before the police may conduct a nonconsensual blood test of a motorist who is arrested on suspicion of driving under the influence of alcohol (DUI), the police must either obtain a warrant from a magistrate or later show that exigent circumstances prevented them from timely obtaining a warrant.

The appellate division held that McNeely did not foreclose consensual blood tests conducted under the implied consent law, and that defendant’s voluntarily and freely given consent satisfied the Fourth Amendment.

The Court of Appeal, per McKinster, Acting P.J., affirms, holding that McNeely does not apply because voluntary consent to the blood draw satisfies the 4th Amendment.

But was the consent truly voluntary? Or was it coerced out of the Def. by an improper advisement that warned of dire consequences that were not true?

What happened was this. After a stop on suspicion of DUI, a deputy sheriff named Robinson ran field sobriety tests, concluded Def. was UI and arrested him. He then advised Def. that he was required to submit to a blood test. Didn’t mention the breath test at all. He then laid out the dire consequences of refusal—suspension of license “for the next two or three years,” and use of the refusal in court.

Def. said, “Okay.”

At the sheriff’s station, a phlebotomist with whom Deputy Robinson had previously worked drew defendant’s blood. Deputy Robinson observed the phlebotomist swab the inside of defendant’s right elbow with what appeared to be a disinfectant. The phlebotomist then obtained a blood sample from defendant using a hypodermic syringe. Deputy Robinson testified that defendant did not resist the blood draw or say, “no, I don’t want to do this.” The phlebotomist packaged the sample, and Deputy Robinson placed it into the station’s blood depository.

So was this voluntary consent? Def. argued no way! First of all, it’s not truly voluntary if a cop tells you better do something, or else. And second, the advisement itself was false. The license suspension here would have been only for a year, and the Def. could have chosen a breath test if presented to him.

The court holds that a test admonition is not, in and of itself, coercive. But it also holds that the false admonition here falls into the no harm, no foul line of cases (my verbiage). The court’s verbiage was this: “Deputy Robinson’s admonition, though not entirely accurate, was not patently false.”

This seems to your humble reporter an odd doctrine. For at what point does “inaccurate” cross over into “patently false”? When does mishandled become mendacious? When does dissembling become deceitful?

Why not make it simple on everybody and require law enforcement to follow the law as it is actually written?

• Heien, ___ US ___, 135 SC 530, ___ LE2 ___ (14) #13-604

A deputy sheriff in North Carolina followed a Ford Escort because he thought the driver looked nervous. When the Escort braked for a stop, the officer saw that one of the brake lights was out.

So the officer pulled the Escort over to write up a warning ticket. During the stop he thought the driver and Heien, who was in the back seat, looked suspicious. So he asked for consent to search the car, got it, and found cocaine in a duffel bag.

Heien contested the search, asserting that state law did not require two working brake lights. The trial court denied suppression, but the Court of Appeals reversed, citing the relevant statute that required “a stop lamp” on the rear. But the Supreme Court of North Carolina reversed the appellate court.

So the question before the United States Supreme Court was whether an officer’s reasonable mistake about the law can excuse a stop in violation of that law.

Yes it can, says the Court, with a couple of big conditions attached.

First of all, the law must really and truly be ambiguous. So ambiguous that a “reasonable” officer could be confused about its application.

This narrows the so-called “mistake-of-law exception.” It must be an objectively reasonable mistake. Note the language in Justice Kagan’s concurring opinion: the statute must pose a “really difficult” or “very hard question of statutory interpretation.”

In this case, the stop lamp law had never been interpreted by a North Carolina court. And there was another statute that could reasonably be interpreted as requiring rear lamps (plural).

So: When a mistake of law case comes along and it is decided the officer’s mistake was reasonable, it means ipso facto that the officer misinterpreted the law. The court decision will have laid out the correct interpretation, and therefore it will never again be objectively reasonable for an officer to make that same “mistake.”

Why not? Because the Supreme Court specifically rules out “sloppy” study:

Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) ….Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.

So there will be two issues at suppression hearing: is the law truly ambiguous? And what sort of student of law is the officer?

NOTE #1: There are a number of California cases that have suppressed evidence based upon an officer’s mistake of law. These all now have to be read in light of Heien. Some will still be valid. For example, in ARTHUR J., 193 CA3 781, 238 CR 523 (87), an officer detained a minor at 5:45 a.m. because he believed the curfew law applied between the hours of 10 p.m. and 6 a.m. Oops. The curfew law was until 5 a.m. There is nothing ambiguous about that statute. So ARTHUR J. is still good law, as is TERESINSKI, 30 C3 822, 180 CR 617, 640 P2 753 (82) (another curfew case where the statute was unambiguous).

NOTE #2: The San Diego Appellate Division, in CAMPUZANO, 231 CA4 Supp. 9 (14), held pre-Heien that a mistake of law, even with a poorly-designed city ordinance, did not save the detention of a guy on a bike. This might have gone the other way post-Heien, because the ordinance was hard to figure out. But here’s the thing. Now that the ordinance has been officially interpreted, officers cannot be excused for the mistake again. And thus does Fourth Amendment jurisprudence wind its way toward greater certainty, albeit slowly.

Immediate DNA Collection From Arrestees Violates 4th

• BUZA, 231 CA4 1446, 180 CR3 753 (14)

From the court’s opinion:

The sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, as amended (Pen. Code, § 295 et seq.) (the DNA Act), which requires that a DNA sample be taken from all adults arrested for or charged with any felony offense “immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest . . . .” (§§ 296.1, subd. (a)(1)(A); 296, subd. (a)(2)(C).) In a prior opinion, we held that the seizure of appellant’s DNA shortly after his arrest, at a time when he was entitled to the presumption of innocence and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures. (People v. Buza, A125542, Aug. 4, 2011.) The case now returns to us with directions from the California Supreme Court to vacate our prior decision and reconsider the matter in light of Maryland v. King (2013) ___ U.S. ___ [133 S.Ct. 1958] (King).

We have done so, and again reverse the judgment of conviction under the DNA Act. As we will explain, because of significant differences between the California DNA Act and the Maryland law considered in King, we question whether King establishes the validity of the California Act’s application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.

Police Told to Stay Outside, But They Don’t, And That’s Called Consent?

• Rodriguez, 231 CA4 288, 179 CR3 843 (14)

Police come to a home without a warrant. They are investigating possible child porn possession. They knock and ask to come in and the resident does not give consent. The cops say, Look, we can go get a warrant and come back and “kick your door in.” Defendant comes to the door. Doesn’t give consent. In fact, tells the cops to stay outside. But they don’t. They just enter. The facts in the case do not anywhere say they were given verbal consent.

Once inside, they started talking, and eventually the Defendant gave the officers consent to take his computer, which had child porn on it.

Clearly an illegal entry, right? No consent. No words to that effect. The only words were, Stay outside. The judge hearing the motion to suppress agreed. Motion granted. Case dismissed.

But then it was re-filed, and the motion renewed, only before another judge. (There is a big procedural issue here regarding the reassignment of the motion to a new judge).

The new judge denied the motion.

I’m still not sure why. The court found that the threat to “kick in the door” was not “coercive,” but I still didn’t see any consent given to enter. I only see that it was explicitly denied. Somehow, the police end up inside the residence and somehow consent was deemed given.

So this gets filed under HS, for Head Scratcher.

• MICHAEL E., 239 CA4 261, 178 CR3 467 (14)

Def. brought his computer to Sage’s Computer in Fort Bragg for servicing. In the course of working on the computer, an employee viewed images on the computer of what appeared to him “to be underage girls engaged in sexual activity.” He felt it appropriate to call the Fort Bragg Police Department to inquire whether these materials were “something that they should be looking at.” Officer who responded to the phone call and viewed the files at the repair shop, stated that although the girls in the photos he viewed were posing in a sexual manner, none of them were nude or “engaging in sexual activity or simulating any sexual activity.”

Indicating he did not consider the images pornographic, Off. asked employee whether he “could search through and look at” anything else in the computer. After further examining Def’s computer files, employee found video files he had not previously noticed. When directed by Off. to open these files, he tried to but was unable to do so. He was, however, able to put the video files on a USB flash drive, which he gave to Off., who took the drive to the Fort Bragg Police Department.

When he was unable to open the files on his own computer, Off. gave the flash drive to a sergeant, who was able to open and view the videos it contained. They concluded the vids depicted “[f]emale juveniles engaged in sexual activity.” The next day they seized the computer.

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

They key to the case was the trial court’s ruling that the computer’s hard drive was the functional equivalent of a “closed container.” Thus, when the employee examined the hard drive, he was conducting a private citizen search, which is not covered by the 4th Amendment. Reporting it to the cops, reasoned the trial court, and the subsequent search of the contents, was merely an extension of this private search.

Not so fast, say the Court of Appeal. The United States Supreme Court recently decided in RILEY, 573 US ___, 134 SC 2473 (14) that a cell phone’s data cannot be searched without a warrant. That being so, the same rationale applies to computers.

The Supreme Court’s analysis in Riley highlights the dangers inherent in lawyers and judges cavalierly applying established legal theories to new technologies, without carefully exploring the factual differences between such technologies and the objects traditionally found appropriate for those theories’ application. (See Riley, supra, 134 S.Ct. at p. 2491.) As the Tenth Circuit Court of Appeals has observed: “ ‘Since electronic storage is likely to contain a greater quantity and variety of information than any previous storage method, . . . [r]elying on analogies to closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.’ [Citation.]” (United States v. Carey (10th Cir. 1999) 172 F.3d 1268, 1275; see also Lessig, The Path of Cyberlaw (1995) 104 Yale L.J. 1743, 1752 [urging courts to “follow the meandering development of the common law” before “venturing too boldly” into the regulation of cyberspace].)

 

Two cases hold that police relied in good faith on existing California precedent, even though the United States Supreme Court subsequently overruled such precedent.

Macabeo, ___ CA4 ___, ___ CR3 ___ (14) #B248316

Officer stopped Defendant on his bicycle for failing to stop at a stop sign. They asked Def. if he was on probation or parole, and Def. told him that he was on probation for “methamphetamine.”

After he told the Off. he did not have anything illegal in his possession, Off. initiated a pat down search and then asked Def. for consent to search his pockets. Def. said, “Yeah, sure.” Off. removed various items from defendant’s pockets, including a cell phone, and handed the items to his partner

Warrantless search of the cell phone found a picture folder that contained pictures of young girls under the age of 18 engaged in sexual activity. Possession or control of such pictures was a violation of Penal Code section 311.11, subdivision (a).

Def. moved to suppress. Denied. This appeal followed.

When the search took place Diaz (2011) 51 Cal.4th 84, upholding a warrantless cell phone search incident to arrest, was good law.

But while this case was on appeal the United States Supreme Court reached the opposite conclusion in Riley v. California (2014) __ U.S. __, 134 S.Ct. 2473 [cell phones my not be searched incident to arrest absent exigent circumstances]

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

Although the warrantless search of defendant’s cell phone was unlawful under the recent decision in Riley, supra, the search falls within the good faith exception to the exclusionary rule. Thus, the failure of the trial court to suppress the evidence obtained from the search of the cell phone does not require a reversal of the trial court’s order denying defendant’s motion to suppress or his conviction.

Youn, ___ CA4 ___, ___ CR3 ___ (14) #B253401

Officer responded to the scene of a traffic accident. He observed Defendant, being loaded into an ambulance, was combative, “actively trying to move his arms, fight with the paramedics”; had “rapid unintelligible speech”; and was “in and out of [consciousness].”

So the Off. followed the parade to the hospital, where Def. was also combative with the hospital staff, so they began to sedate him. Off. placed Def. under arrest and asked a nurse to draw blood from Def. The blood draw occurred about three hours after the accident. The Off. found out, “just prior to the blood draw,” that defendant was on probation for driving under the influence.

The blood showed signs of meth and marijuana.

Def. moved to suppress. He argued that the United States Supreme Court decision in McNEELY, 569 US ___, 133 SC 1552, 185 LE2 696 (13), which was decided after the facts of this case, held there is no per se rule that blood may be drawn from a DUI suspect. The “totality of circumstances” must be considered.

This holding overrides the California precedent in effect before McNeely.

Same result as in Macabeo, above. Because the Off. relied “in objective good faith” on California law at the time, suppression is denied.

Opinion by Grimes, J.

No Probable Cause to Detain House Resident. Consent to Search Vitiated

 LUJANO, ___ CA4 ___, 176 CR3 534 (14)

 Two Riverside police officers on patrol saw a man in the driveway in front of a house stripping copper wire from an air conditioning unit. The officers approached and spoke with the man, Vargas, who said he was there visiting a friend inside the house. Vargas also admitted to being on probation “for narcotics.” He explained he was stripping copper wire from the air conditioner because it no longer worked.

A side door that led from the driveway into the house was ajar—partially open, but not enough to walk through. Off. approached the door and leaned inside, identifying himself as a police officer and commanding anyone in the house to come to the door. Def. responded, coming out from the bedroom and following orders to turn around and walk backwards out of the door.

Off. asked Def. for consent to search his person; Def. gave his consent. Plastic bag of methamphetamine in Def’s pants pocket, at which point he was arrested.

Def. consented to a search of the residence. Weapons.

Def. moved to suppress the evidence, claiming his illegal detention and arrest made subsequent consent invalid. Motion denied. The Court of Appeal, per Hollenhorst, Acting P.J., reversed.

The court held that there was no probable cause to believe that Def. was involved in any criminal activity. When the Off. ordered Def. to turn around and walk out backwards, that was an illegal detention.

The consent followed the illegal detention, and there were no intervening circumstances to attenuate the taint. All of the evidence should have been suppressed.

Requesting Someone to Sit on Curb Makes It a Detention

IN RE J.G., 228 CA4 402, 175 CR 183 (14):

Officer saw 15-year-old J.G. walking across a parking lot toward D.G., who is J.G.’s brother. J.G. was carrying a backpack. Off parked to initiate “a consensual encounter.”

He asked where they were going, and they said to a party. Other officers arrived.

During this encounter Off. asked for ID (it was given) and for consent to search J.G.’s person. “Yes.” A patdown and pockets search found nothing. Off. asked the brothers if “they would be willing to have a seat on the curb.” They sat. Then Off. asked J.G. if he could search his backpack. “Yes.” Smith & Wesson semiautomatic pistol.

J.G. moved to suppress. Denied. The Court of Appeal, per Humes, J., reversed.

A consensual encounter becomes a detention when police “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 US 429 (91).

J.G. argued that his age should be part of the calculation. The court did not decide that, because “we need not resolve the issue here because we conclude that a reasonable person in J.G.’s position would not have felt free to go regardless of his or her age.”

We begin by accepting that Officer Woelkers’s interaction with J.G. began as a consensual encounter. “Approaching a person, requesting to speak with him [and] asking for permission to search him . . . do not transform an otherwise consensual encounter into a detention.” (People v. Coulombe (2000) 86 Cal.App.4th 52, 57, fn. 3.) Nor did Officer Woelkers’s request for J.G.’s identification, name, and birthdate transform the encounter into a detention. (See Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County (2004) 542 U.S. 177, 185 [“[i]n the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment”].) But the consensual encounter turned into a detention as Officer Woelkers’s suspicions persisted without apparent reason, as the encounter became increasingly intrusive, as the minutes passed, and as the police presence and show of force grew. We conclude that by the time Officer Woelkers asked J.G. to sit on the curb, a reasonable person in J.G.’s circumstances would not have felt free to end the encounter.

• Riley v. California, 573 US ___, 134 SC 2473, ___ LE3 ___ (14) #13-132

In a rare unanimous opinion on a search case, the United States Supreme Court holds that law enforcement must first obtain a search warrant before checking the contents of a cell phone. In doing so they explicitly reject the idea that such a search is justified as “incident to arrest.”

The decision combines two cases with simple fact patterns. Riley’s was as follows

Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted.

The California Court of Appeal affirmed.

The United States Supreme Court, per Roberts, C.J., reversed and remanded. The gist of the holding:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s per- son. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.

The Court recognized that there may be case-specific exigent circumstances (such as a child abduction or the texting of an accomplice to detonate a bomb) which allow for a cell phones data to be searched. But that was not the case here.

In his concurring opinion, Justice Alito said:

Many forms of modern technology are making it easier and easier for both government and private entities to amass a wealth of information about the lives of ordinary Americans, and at the same time, many ordinary Americans are choosing to make public much information that was seldom revealed to outsiders just a few decades ago….In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.

NOTE: The contrary holding of the California Supreme Court in Diaz, 51 C4 84, 119 CR3 105, 244 P3 501 (11) is no longer good law.

No Detention With Police Emergency Lights on Parked Car; Split in Appellate Courts

• Brown, 226 CA4 142, 171 CR3 480 (14)

In People v. Bailey, 176 CA3 3402 (85), the court held that emergency lights from a police car would lead a reasonable person to believe he is being detained.

This case disagrees with Bailey, and holds that when a car is parked, police lights alone don’t amount to a detention.

Sheriffs were investigating a report of a fight in an alley. They drove in as Def’s car drove out, but didn’t see any people. They turned around and found Def parked, with brake lights on. They pulled up and turned on the overhead emergency lights.

Approaching, a deputy caught signs of intoxication. Eventually Def was arrested and charged with DUI. His suppression motion was denied.

The Court of Appeal, per Huffman, Acting P.J., affirmed.

Brown asserts he was detained the moment the deputy turned on the overhead lights on the patrol car, even though Brown had previously stopped on his own. Brown relies primarily on the opinion of the Sixth District Court of Appeal in Bailey, supra, 176 Cal.App.3d 402. There a divided panel of the court concluded that: “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.”  (Id. at p. 406.)

***

The basic thrust of the analysis in Bailey is that red lights are a showing that police will chase you if you do not remain stopped.  The analysis does not take into account, as did the dissent, that there needs to be some evidence that the person yielded to that show of authority.  In the case of a stopped vehicle approached by police, we believe there must be something more than merely activating the red lights to accomplish a detention…

Navarette, 572 US ___, 134 SC 896, ___ LE3 ___ (14) #12–9490:

A 911 caller reported that a truck had run her off the road. She was able to describe the truck, what direction it was going and the license plate. A dispatcher reported this to California Highway Patrol officers. A few minutes CHP spotted the truck, and pulled it over. As the two officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30 pounds of weed. The officers arrested the driver, petitioner Lorenzo Prado Navarette, and the passenger, petitioner José Prado Navarette.

The petitioners challenged the stop, arguing there was no reasonable suspicion of criminal activity. The Supreme Court, with a surprising dissenter, holds that the stop was valid.

The issue is whether an anonymous tip can provide the reasonable suspicion required to make a stop. In the past the Court has held that given sufficient corroboration, the “totality of the circumstances” can provide the justification.

The majority opinion, by Thomas, J., alludes to two contrasting Court decisions: Alabama v. White, 496 U. S. 325 (1990) and Florida v. J. L., 529 U. S. 266 (2000).

In White, the details provided by an anonymous tipster supplied the basis for a reasonable suspicion that crime might be afoot. The tipster’s details, which included an allegation of cocaine distribution, indicated that tipster had a “familiarity” with the suspect’s affairs. In J. L., the “bare-bones” details did not provide enough indication of the same familiarity.

In the present case, then, did the details provided by the tipster rise to such a level that the officers could reasonably conclude the reckless driving report might indicate ongoing criminal activity such as drunk driving?

Yes, holds the Court, because the details provided were that of an eye witness to the possible criminal activity, whereas in J. L. there was nothing to indicate the tipster had seen anything illegal.

The Court also reasoned that the timeline of the report indicated it came in just after the tipster said she was run off the road. “That sort of contemporaneous report has long been treated as especially reliable,” writes Justice Thomas. He concludes:

Although the indicia present here are different from those we found sufficient in White, there is more than one way to demonstrate “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U. S., at 417–418. Under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road. That made it reasonable under the circumstances for the officer to execute a traffic stop. We accordingly affirm.

Now comes the somewhat surprising dissent. It is by Justice Scalia, joined by Ginsburg, Sotomayor and Kagan. You don’t see that everyday.

And he is having none of the majority opinion:

I fail to see how reasonable suspicion of a discrete instance of irregular or hazardous driving generates a reasonable suspicion of ongoing intoxicated driving. What proportion of the hundreds of thousands—perhaps millions—of careless, reckless, or intentional traffic violations committed each day is attributable to drunken drivers? I say 0.1 percent. I have no basis for that except my own guesswork. But unless the Court has some basis in reality to believe that the proportion is many orders of magnitude above that—say 1 in 10 or at least 1 in 20—it has no grounds for its unsupported assertion that the tipster’s report in this case gave rise to a reasonable suspicion of drunken driving.

And his ringing conclusion:

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.

• Fernandez v. California, 571 U.S. ___. 134 SC 1126 (14) #12-7822:

This is a case that came out of California, Fernandez, 208 CA4 100, 145 CR3 51 (12). The facts:

Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Roxanne Rojas, who appeared to be battered and bleeding. When the officers asked her to step out of the apartment so that they could conduct a protective sweep, petitioner came to the door and objected.

Suspecting that he had assaulted Rojas, the officers removed petitioner from the apartment and placed him under arrest. He was then identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas’ oral and written consent, searched the premises, where he found several items linking petitioner to the robbery. The trial court denied petitioner’s motion to suppress that evidence, and he was convicted. The California Court of Appeal affirmed. It held that because petitioner was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants pre- sent objects to the search, Georgia v. Randolph, 547 U. S. 103, did not apply, and therefore, petitioner’s suppression motion had been properly denied.

The Supreme Court, 6-3, affirmed. Justice Alito writing for the majority:

Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

The petitioner argued that police motive could result in a co-occupant being removed for the sole purpose of getting consent from the other occupant. The Court refused to put in a subjective test, holding “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.”

But in dissent, Justice Ginsburg wondered, “Does an occupant’s refusal to consent lose force as soon as she absents herself from the doorstep, even if only for a moment? Are the police free to enter the instant after the objector leaves the door to retire for a nap, answer the phone, use the bathroom, or speak to another officer outside? Hypothesized practical considerations, in short, provide no cause for today’s drastic reduction of Randolph’s holding and attendant disregard for the warrant requirement.”

Odor of MJ Plus Pipe With MJ in Bowl Gives P-C For Vehicle Search 

• Waxler, 224 CA4 712, 168 CR3 822 (14): 

Del Norte County Sheriff’s Deputy Richard Griffin learned a person was illegally dumping trash in a parking lot behind a Crescent City Safeway. Deputy Griffin drove to the Safeway and stopped next to appellant’s truck.  Appellant was sitting in the driver’s seat. As Deputy Griffin “got close” to appellant’s truck, he smelled “the odor of burnt marijuana” and “saw a marijuana pipe with . . . what appeared to be burnt marijuana in the bowl.”  The pipe was “on the bench seat right next to” appellant.  Deputy Griffin searched the truck and found a methamphetamine pipe and a small bindle containing suspected methamphetamine with a street value of about $50.

At the prelim Def. argued that the amount of “completely un-smoked marijuana . . . in the bowl” was a “miniscule” 0.3 grams and “was well below the personal limits that are allowed by law.”  He claimed Deputy Griffin’s observation of marijuana in the truck “could not have supported an arrest” because possession of up to 28.5 grams of marijuana is an infraction under section 11357.

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

Both sides cited Strasburg, 148 CA4 1052, 56 CR3 306 (07), which held that observation of a “useable quantity of marijuana . . . in the passenger compartment” of the defendant’s car “provided probable cause for the search of the vehicle’s trunk.”

However, Def. argued that when Strasburg was decided in 2007, marijuana possession was a misdemeanor and now, possession of less than an ounce of marijuana is merely a nonjailable offense.

To which the court utters a collective, So?

Appellant is correct that possession of up to an ounce of marijuana is an infraction, punishable by a fine.  (§ 11357, subd. (b).)  He seems, however, to misunderstand the automobile exception to the warrant requirement. A “warrantless search of an automobile is permissible so long as the police have probable cause to believe the car contains evidence or contraband.”  (Robey, supra, 56 Cal.4th at p. 1225, italics added, citing Chambers v. Maroney (1970) 399 U.S. 42, 48; 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 266, p. 1083.)  

Unlawful Auto Detention Can’t Be Retroactively Cured By Passenger Probation Search Condition

• BATES, 222 CA4 60, 165 CR3 573 (13) #H037910:

Deputy sheriffs responded to a disturbance involving two males and one female. Deputies Skelton and Gidding, as well as other deputies, arrived at the same time and interviewed the three people present. One of the individuals reported that his cell phone had been taken from him. He described the assailant to Deputy Skelton as a black male, just older than high school age, wearing a navy blue shirt, navy blue pants, and a navy blue jacket.  He also told the deputy he had seen the assailant around the area before, and that the assailant’s name might be “Marcus.” The other male present when the deputies arrived was Shelton’s uncle, Michael Lesui, who recited Shelton’s statements that the perpetrator threatened to shoot Shelton if he did not give up his phone and that the perpetrator drove a gold van.

Deputy Fenster, who also responded to the disturbance call, learned that defendant was a felony probationer who matched the general description of the assailant and lived in a nearby apartment complex. After learning defendant’s probation terms included a warrantless search condition, Deputy Fenster directed Deputy Gidding to drive to the apartment complex where defendant lived and to stop the gold van used by defendant’s family if he saw it leave the complex.

Deputy Skelton ultimately informed the other deputies over the radio that a person matching the assailant’s general description was walking west toward a mobile home park. Based on that information and a statement from another deputy that the person walking could be Marcus Bates, Deputy Gidding drove part way through the mobile home park and stopped his patrol car on the side of the park’s single access road.

Within two minutes of Deputy Skelton’s radio broadcast, Deputy Gidding noticed a tan car driving toward the park’s exit.  Deputy Gidding got out of his patrol car and signaled the car to stop.

When Deputy Gidding approached the tan car, he noticed the passenger in the back seat was also a black male. After he told the occupants he was investigating a crime and asked them for identification, the passenger in the back seat identified himself as “Marcus Bates.” He was wearing a blue zip-up hooded jacket, a blue shirt, and blue jeans. Deputy Gidding asked him to get out of the car and placed him in handcuffs.

Defendant moved to suppress all evidence obtained as a result of Deputy Gidding’s stop of the tan car, arguing the stop violated the Fourth Amendment.  The trial court denied the motion.

The Court of Appeals, per Grover, J., reversed.

From these facts, and considering them in light of the totality of the circumstances, we conclude the deputy had no reasonably articulable suspicion that either the occupants of the tan car or the car itself may have been involved in criminal activity.  Instead, it appears Deputy Gidding made the stop based solely on the possibility that the suspect might be riding in the vehicle.  It is logical to assume that a suspect might get into a vehicle to leave the location of a crime and its investigation. Without more, however, that assumption does not rise to the particularized suspicion necessary to detain the vehicle and its occupants.

The People argued that the probation search condition should be applied “retroactively.” The court rejected this argument, distinguishing People v. Durant, 205 CA4 57 (2012):

Unlike the officer in Durant, who stopped a car based on a perceived traffic violation, Deputy Gidding stopped the tan car without any observation of possible wrongdoing. As we discussed previously, Deputy Gidding’s conduct was based on a hunch that defendant might be in the vehicle. Though we do not suggest Deputy Gidding acted in bad faith, we find his suspicionless stop of the tan car nonetheless purposeful for our attenuation analysis. Based on this finding, together with our determination that defendant’s probation search condition was an insufficient attenuating circumstance, we conclude that the evidence obtained as a result of the detention and search should have been suppressed.

Warrantless Cheek Swab for DNA Permissible

[NOTE: Review has been granted by the Cal. Sup. Court. Below opinion is no longer authority]

* Lowe, 221 CA4 1276, 165 CR3 107 (13):

Def. was arrested for a sex crime in 2006 and subjected to a warrantless buccal (inner cheek) swab for DNA.

The DNA profile was subsequently used to convict Def. on several burglary and sex crimes. He appealed, contending that the warrantless swab violated the 4th Amendment and the evidence should have been suppressed.

The Court of Appeal, per Nares, J., affirmed the denial of suppression.

Under Prop. 69, passed in 2004 by the voters of California, a cheek swab is to be taken from all persons arrested for any felony offense. After a lengthy analysis of the factors involved, the court held:

We conclude that the legitimate governmental interests promoted by the warrantless collection of buccal swab DNA samples from felony arrestees who are taken into custody upon probable cause, far outweigh the arrestees’ privacy concerns.  Our conclusion is based on the following five reasons:  The felony arrestee’s diminished privacy interests; the de minimis nature of the physical intrusion involved in the collection of a buccal swab DNA sample; the carefully limited scope of the DNA information that is extracted; the strict limits on the range of permissible uses of the DNA information obtained and the significant criminal penalties imposed upon those who violate those limitations; and the strong law enforcement interests in obtaining arrestees’ identifying information, solving past and future crimes, deterring future criminal acts, and exonerating the innocent. 

Accordingly, we hold that the 2004 Amendment authorizing the mandatory and warrantless collection and analysis of buccal swab DNA samples from felony arrestees does not violate the Fourth Amendment.  Thus, we also conclude the court properly denied Lowe’s suppression motion.

[UPDATE: Review has been granted by Cal. Sup. Ct. Below decision is no longer authority]

• Lester, 220 CA4 291, 162 CR3 907 (13):

A 911 caller reported four to five female subjects near a red car who were yelling and screaming and possibly going to engage in a physical fight. When the officer arrived after some delay, he saw that there was no red car outside.

Defendant and codefendant walked out of the more eastern of two apartments, which was attached to the 911 caller’s apartment. The officer asked the men what was going on.

The codefendant said, “There is a problem with my baby mama, but it’s all right now.” The defendant and codefendant were detained by two of the five other officers and sat down at the curb, because it was suspected that they were involved in the disturbance that caused the 911 call.

The officer knocked on the door of the Apt. to see if any of the females involved in the disturbance were there, but there was no answer. He opened the door, which was not locked, and announced himself, then entered in order to find the females and ensure that there was not a physical fight and they were not injured.  He immediately detected the strong smell of marijuana.

No one was inside.  However, he saw, in plain sight, suspected marijuana and cocaine.

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

Applying the reasoning in Troyer [51 Cal.4th 599 (11)], we note that the 911 caller believed the four to five female subjects were going to have a fight and the officer had been delayed in his arrival at the apartment.  The four to five females were not present, nor was the car associated with them.  However, defendant and the codefendant walked out of the apartment that was the source of the disturbance.  The codefendant confirmed that there had, indeed, been a “problem,” and the officer was free to disbelieve his representation that everything was now all right.  The 911 caller confirmed to the officer that a “large fight” had taken place at the apartment.  No one answered the door at the apartment and the officer entered to find the females and make sure that none were injured.  We agree with the trial court that these circumstances created a reasonable basis for the officer to believe that the females were in the apartment and in need of immediate aid.

• Leath, 217 CA4 344, 158 CR3 449 (13):

Police officers spoke to three victims of a robbery. They said they had been walking home when a dark SUV came towards them. The person on the passenger side of the SUV got out first, approached, pointed a gun, and said, “Give me your stuff.”  Female handed over her purse.  Her friends ran towards her to see what was going on, and the suspects “pocket checked” them at gunpoint. The suspects then said, “Four-Eighth Street. Start running.” Four-Eighth is a street gang unit of the Rollin’ 40’s.

The victims described the perps as approximately 20 years of age. One suspect was wearing a blue Cardinals jacket. The victims said the SUV was either burgundy or dark in color. They were not able to otherwise describe the SUV.

The officers spotted the SUV nearby, with the passenger door open. Off. detained Def, who was walking away. Asked if it was his SUV, and he said, “Yes.” Off. then asked for ID, and the Def. gave it to him. They ran his name and discovered outstanding warrants, and arrested him.

His motion to suppress was denied, and the Court of Appeal, per Suzukawa, J., affirmed.

In the present case, the trial court concluded that defendant voluntarily complied with the officers’ request for identification.  This conclusion is supported by substantial evidence.  The officers did not accuse defendant of any illegal activity when they first addressed him—they merely told him his car door was open and asked if the car belonged to him.  They then asked for—but did not demand—identification.  There is no evidence that the officers used or threatened defendant with any physical force.  Nor is there any evidence that, had defendant asked the officers to return his identification card to him, they would not have complied.  Thus, the record supports the trial court’s conclusion that a reasonable person in defendant’s situation would have felt free to leave.

Handcuffing Defendant at Gunpoint Was Not De Facto Arrest

• Turner, 219 CA4 151, 161 CR3 567 (13):

After a high school football game, head coach Rafael Ward, and several other coaches, were accompanying their families to their cars for their protection because of a threat by defendant Ronald Henderson Turner, a parent of one of the players. Defendant called one of the coaches a racial slur and then said, “I’ll see you after the game.” Coach Ward told Lawrence Fenton, an off-duty probation officer providing security at the game, about the threat and that defendant had said he was going to carry out his threat after the game. A short time later, Ward told Officer Fenton that he (Ward) had learned from his aunt (who had heard it from an acquaintance of defendant) that defendant “had a gun on him.”  Officer Fenton called Salinas police for backup.  His partner who was with him, Steve Hinze (also an off-duty probation officer), located defendant and (with the police) detained him at or next to the parking lot outside the stadium. Defendant was handcuffed at gunpoint while officers determined whether he was armed. After admitting to a police officer that he had a gun, the police located a loaded revolver concealed on his person, and he was arrested.

After the denial of defendant’s 1538.5 motion, he pleaded no contest to possession of a firearm in a school zone. The court suspended defendant’s sentence and placed him on felony probation under various terms and conditions, including the condition that he serve 250 days in county jail.

Defendant’s motion to suppress involved dual, alternative contentions.  First, defendant argued that the officers’ action of handcuffing him at gunpoint was not a detention for which they would have needed a reasonable suspicion of criminal activity; rather, it constituted a de facto arrest, and the officers had no probable cause that defendant had committed a crime. Second, that even if he was not arrested, his detention was unlawful because the detaining officers did not have specific articulable facts upon which they could have reasonably suspected that he was involved in illegal activity.

A. There Was No De Facto Arrest

A detention at gunpoint is a factor that obviously increases its intrusiveness; in some instances, this factor may result in the encounter being deemed an arrest that must be supported by probable cause, while in other instances, it may be found an appropriate element of the detention.  (People v. Glaser (1995) 11 Cal.4th 354, 366.)  Similarly, handcuffing a suspect does not necessarily convert a detention into a de facto arrest.  (Celis, supra, 33 Cal.4th at p. 675; see also In re Antonio B. (2008) 166 Cal.App.4th 435, 441.) 

Here, there were “articulable facts upon which the officers reasonably concluded that defendant was armed.”

B. The Detention Was Reasonable

We acknowledge that the intrusion to defendant in being publicly detained and handcuffed at gunpoint may have been greater than the traffic stop at issue in Wells, supra, 38 Cal.4th 1078.  But the intrusiveness of the stop is only one of the factors to consider in determining whether the detention was reasonable, as seen, for example, in Dolly, where the defendant was ordered out of his car located on a city street in the middle of the afternoon and instructed to lie down in the street with his hands at his side.  (Dolly, supra, 40 Cal.4th at p. 462.)   

The court distinguished the information provided in Florida v. J.L. 529 U.S. 266 (00):

Unlike in J.L., this is not a case in which the original tipster’s identity is unknown and he or she therefore cannot be held accountable to the police.  The informant here was Ward, who told Officer Fenton (in Officer Hinze’s presence) that his aunt “knew someone who knew [defendant] and said he had a gun on him.”  Thus, although the ultimate source that defendant was armed was not disclosed, Ward, unlike the anonymous tipster in J.L., was a known individual communicating the tip.  He—like a known informant providing a tip to the police—had a “reputation [that could] be assessed and who [could] be held responsible if [his] allegations turn out to be fabricated.”  (Id. at p. 270; see also id. at p. 276 (conc. opn. of Stevens, J.) [where “informant places his anonymity at risk,” court may consider this factor in assessing tip’s reliability].)  Thus, we are not faced here with the inherent unreliability “of an unknown, unaccountable informant” as found in J.L. (id. at p. 271).  Further, the tip concerned a named individual, defendant, whereas the suspect in J.L. was described as a young Black male wearing a plaid shirt.  (Id. at p. 268.)