• PAUL, ___ CA5 ___, 318 CR3 142 (24) #B320488:
On patrol, Offs noticed a parked Toyota Prius with the lights on. Saw a male driver talking on the phone. Offs approached the Prius from either side, standing close and shining flashlights in. Off engaged in conversation, asked Def. if he was on parole or probation. Parole.
Parole search of the car found a firearm. Def. moved to suppress. Denied. The Court of Appeal, per Moor, J., reverses.
The question was whether the initial contact by police was a detention. In other words, would a reasonable person have felt free to leave?
The court says no.
First, the officers were too close to the car for Def. to drive away without contacting them.
Second, shining the flashlights in from two sides was a show of authority, citing Tacardon, 14 C5 235 (22) and Kasrawi, 65 CA5 751 (21) [Rev. Pen. Cal. Sup. Ct.]
Nor did it matter that the tone of the officer was “non-confrontational.”
If the officer’s tone and words had been aggressive, it would be an additional reason for a reasonable person to believe that he or she was being detained. The converse is not necessarily true, however—the officer’s courteous manner of speaking did not overcome the impression that he intended to detain Paul, which he and his partner conveyed through their actions.
Recordings From City Streetlight Cameras Are Not a Search
- Cartwright, 99 CA5 983, 317 CR3 472 (23) #D080606:
A gold Yukon parked in front of a flooring store in San Diego. A woman in disguise went in, followed by Def. wearing granny mask and sunglasses. Def. shot and killed the owner and took the money from the register. The accomplice drove away in the Yukon. Def. walked behind a nearby clothing store and removed his mask, an action captured by the store’s security camera. He then used two different white sedans to leave the area.
A detective accessed streetlight camera footage. These cameras are fixed in position and located throughout downtown San Diego and other parts of the city. Footage is stored on each camera’s hard drive for five days; if it is not retrieved within five days, the camera records over the footage.
The video revealed the Yukon, which the DMV tagged as belonging to Def. Police arrested him and, in a subsequent search, found evidence linking him to the robbery-homicide.
Def. moved to suppress the evidence as “fruit of the poisonous tree.” Denied.
The Court of Appeal, per Dato, J., affirms.
The cameras, by their very nature and limitations, do not reveal the transit patterns of people throughout the county. The information they capture is all information voluntarily conveyed to anyone in a public space who cares to look—something any police officer could have done without a warrant.
Cartwright had no objectively reasonable expectation of privacy when he used the public streets and sidewalks downtown in a manner readily observable to passersby. We therefore conclude the police did not conduct a “search” when they accessed footage from City’s streetlight cameras and, accordingly, there was no violation of the Fourth Amendment.
The court distinguished the fixed cameras here with the cell-site records seized in CARPENTER, 585 US ___, 138 SC 2206, 201 LE2 507 (18):
The United States Supreme Court in Carpenter specifically indicated that its holding was intended to be narrow and did not extend to “conventional surveillance techniques and tools, such as security cameras.” (Carpenter, supra, 138 S.Ct. at 2220.) Recordings from cameras, such as the ones that captured Cartwright’s movements in the downtown urban environment in the middle of a weekday, do not rise to the same “unique nature of cell phone location records.” (Carpenter, at p. 2217.) Indeed, “ ‘[a] person traveling . . . on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ”
“Total Suppression” of Evidence May be Appropriate in Certain “Egregious” Cases
- Helzer, 15 C5 622, , 317 CR3 246, 541 P3 489 (24) #S132256:
The California Supreme Court has never formally adopted the federal doctrine of “total suppression.” This doctrine holds that officers may conduct a search that so exceeds the parameters of the search warrant that suppression of all seized evidence is warranted. See, e.g., FOSTER, 100 F3 846 (10th Cir. 1996).
In this death penalty affirmance, the Court assumes “for argument’s sake that the remedy of total suppression may be appropriate in extreme circumstances of flagrant government misconduct.”
It then goes on to analyze the facts and find nothing egregious here, nor that the police were motivated “by a desire to engage in indiscriminate ‘fishing’ rather than by ‘considerations of practicality.’ ”
In sum, we assume for argument’s sake that the remedy of total suppression may be appropriate in extreme circumstances of flagrant government misconduct. Even so, we conclude defendant has not shown the drastic remedy of suppression of all evidence is warranted here. He has not demonstrated that the executing officers grossly exceeded or flagrantly disregarded the terms of the warrants at issue. Even assuming some of the items seized were not identified in the search warrants, this does not transform an otherwise valid search warrant into an unconstitutional general warrant. The behavior of the officers, the conditions under which the evidence was obtained, and the nature of the evidence seized — whether viewed individually or collectively — does not convince us that this extreme remedy is warranted.
Whimsical Wanderings
Random reflections to lift your spirits and provide a welcome relief from the rantings and ravings that are all too common. Follow thoughts, words, and deeds to fresh perspectives and a few smiles. Please check out my Whimsical Wanderings newsletter: