Category Archives: Exigent Circumstances

Jan 20 2024
Exigent Circumstances, Search Warrants, Standing

Blood Draw From Unconscious Person Not Justified by Exigent Circs or Good Faith

  • ALVAREZ, ___ CA5 ___, ___ CR3 ___ (23) #D080585:

Officers responded to a fatal accident scene. Defendant Alvarez had driven one of the cars and seemed “uninjured but shaken.” Emergency medical arrived and took Alvarez and the sole survivor from the other car to the hospital.

An officer went to the emergency room to request a blood draw from Alvarez, but he was not responsive. The officer ordered one taken anyway. Two-and-a-half hours had elapsed between the accident and blood draw.

Was this permissible under the exigency exception to the warrant requirement?

In Mitchell, 588 US ___,139 SC 2525 (19), the Supreme Court held “when police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.”

Key word, almost.

The court here cites McNEELY, 569 US ___, 133 SC 1552 (13), which held that officers need a blood-draw warrant if one is practical to obtain.

Here, the court found in the record that a telephonic warrant was possible and would not have hindered the investigation. When asked why he did not seek one, the officer had stated, “I just didn’t think of a warrant at that time. . . . And I don’t think I was thinking I should get a warrant or I shouldn’t get a warrant. That didn’t cross my mind at that time, I guess.”

So no exigent circumstances here. The People, however, argued another exception: Good faith, specifically, good faith reliance on the applicability of California’s implied consent law.

Generally, an unconscious or incapacitated person is “deemed not to have withdrawn his or her consent” and a blood or breath test may be administered without giving any admonition about loss of driving privileges.

However, the person must be lawfully arrested for violation of certain sections of the VC, or there must be probable cause to arrest.

Alvarez was not arrested for any offense at the time of the blood draw, and the officer had made no decision to arrest him. Officer Yost had not yet determined who was at fault in the collision. Nor did probable cause exist to support the warrantless blood draw.

Does Forcing Finger to Free Up Phone Frustrate Fourth?

  • Ramirez ___ CA5 ___, ___ CR3 ___ (23) #H049957:

Suspecting Def of lewd and lascivious contact with several minors, Officer obtained a warrant to search Def’s phone for photos and videos. In the warrant application the Off stated: “Your affiant requests permission to contact [defendant] so that we can use his fingerprint to open his cell phone. … It has been my training and experience that newer smart phones are difficult to access absent the passcode or fingerprint even with recent technological advancements. … [¶] Your affiant will attempt to get [defendant’s] cooperation in order to obtain his fingerprint. Should he not cooperate with you[r] magistrate’s order, your affiant request[s] permission to use reasonable force to obtain his fingerprint on his cell phone.”

At the jail, the Off “grabbed” Def’s hand and “guided it toward the phone.” The Def pulled away, but then allowed Off to “guide” his hand toward the phone, while stating, “I’m not giving you permission to do that.” A fingerprint on Def’s left hand unlocked the phone, and Off looked through the contents of the phone, finding lewd images.

Def’s motion to suppress was denied. The Court of Appeal affirmed.

The issue of whether compelling Def to provide his finger is itself a search under the Fourth Amendment was not resolved, because the court held that the S-W authorized the use of “reasonable force” to get the print, even though that was not on the face of the warrant. Def argued it had t be there.

However, defendant cites no authority for the proposition that the magistrate’s authorization to use his fingerprint was required to be contained on the face of the warrant rather than in the probable cause statement that was incorporated into the warrant. Generally, “the scope of the officer’s authority is determined from the face of the warrant and not from the affidavit.” (Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 109.) Here, nothing on the face of the warrant either specifically authorized Gonzalez to unlock the phone with defendant’s fingerprint or prohibited Gonzalez from taking this action. A deficient description of the place to be searched or items to be seized may be cured by reference to the affidavit where “(1) the affidavit accompanies the warrant at the time it is served, and (2) the warrant uses suitable words of reference which incorporate the affidavit by reference. [Citations.]” (People v. MacAvoy (1984) 162 Cal.App.3d 746, 755.)

However, the court gave an “even if”—

Even if the electronic communications search warrants could not be reasonably understood to encompass the compelled use of defendant’s fingerprint, suppression of the evidence discovered on defendant’s phone was not required because the good faith exception to the exclusionary rule applies.

Def also argued that the compelled digit violated his right against self-incrimination, but the court ruled that a finger unlocking a phone is not “testimonial in nature.”

Def argued that using physical force to get the print violated due process.

In performing a search or seizure of a person, law enforcement “may not use unreasonable force to perform a search or seizure of a person.” (People v. Rossetti (2014) 230 Cal.App.4th 1070, 1078.)…[The] physical force [Off] used to effect the unlocking of the phone was minimal and reasonable.

No Standing to Challenge Search of Phone

  • Banks 97 CA5 376, 315 CR3 428 (23) #B312618:

Def was stopped for a traffic violation. Off observed MJ, and also a 14-year-old girl passenger (Doe). A check revealed Def’s license was suspended and there was a misdemeanor traffic warrant for his arrest. A search of the car turned up “revealing clothing,” wigs, condoms. Def was arrested and Doe questioned at the station. Doe consented to a search of her cell phone and signed a consent form. Officer searched the phone and saw information that confirmed his belief that Def was involved in human trafficking or sex for money.

Def moved to suppress the phone evidence. The trial court found no standing. But Def asked the court to find a reasonable expectation of privacy in the data transmitted to a third party because of the “complex, detailed and private nature of smartphone communication.”

The answer is, no. We decline the invitation to depart from this well-settled doctrine.

Jan 16 2020
Auto Searches, Bugging, Exigent Circumstances

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

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

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

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

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

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

***

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

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

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

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

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

 

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

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

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

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

But then!

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

The opening of the opinion sums up the holding:

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

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

 

Recorded Phone Conversation in Violation of PC 632 is Admissible

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

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

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

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

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