Category Archives: Probable Cause

Sep 23 2024
Good Faith, Probable Cause, Temporary Detention

Good Faith Didn’t Save Search Beyond Scope of Warrant

• DiMAGGIO, ___ CA5 ___, ___ CR3 ___ (24) #H051516:

Search warrant was issued for Def’s cellphone and tablet for text and images relating to a sexual assault accusation. The S-W had a limited date range and specified searching only images with “time stamps.” Offs searched beyond the scope and found child porn.

Def’s motion to suppress was denied. The Court of Appeal, 2-1, per Danner, J., reversed.

A search pursuant to “a valid warrant may nonetheless be unreasonable if the officers conducting the search exceed the scope of the warrant and, for example, begin looking for files that are not related to the subject of the search warrant.” (United States v. Johnston (9th Cir. 2015) 789 F.3d 934.)

The People argued, and the court below agreed, that the Good Faith Exception applied to the facts here.

The key to this good faith exception “is ‘that the officers properly executed the warrant and searched only those places and for those objects that it was reasonable to believe were covered by the warrant.’ ” [citing MacAvoy, 162 CA3 476 (84)].

In this case, however:

An objectively reasonable officer would understand that date and time limitations in a search warrant for electronic information would require them to filter the data in a manner that returned only items falling within that timeframe. Conversely, an objectively reasonable officer would not conclude that including items without timestamps would yield only items that comply with the temporal parameters of the search warrant. Rather, they would understand that such a search would be likely to yield both items that fall within the specified timeframe and items that fall outside of it.

***

Because Acevedo, Gonzalez, and Hoskins did not act within the scope of the search warrant in conducting their search of DiMaggio’s cellphone, but, rather, intentionally disregarded and substantially exceeded the limitations in the warrant’s scope, the good faith exception does not apply.

Bamattre-Manoukian, Acting P.J., dissented.

Loose Marijuana in Plain View, Plus Other Factors, Gave P-C to Search Auto

  • Sellers, ___ CA5 ___, 324 CR3 650 (24) #C100036:

Traffic stop. Defendant was passenger. Officer asked driver for license and if there was any marijuana in the car. Driver said no. But Officer saw in the back of the vehicle a tray “commonly used for rolling marijuana cigarettes or blunts.” The tray was covered in a sticky residue “consistent with marijuana.”

Another Officer conducted a plain view search by peering through the rear passenger’s side window with a flashlight. He saw “crumbs” of marijuana scattered on the rear floorboard, as well as “somewhat larger” “round circular nuggets” of marijuana under the front passenger seat.

Based on the loose marijuana observed on the floorboard, together with the marijuana rolling tray and other factors, the officers concluded there was probable cause to search the vehicle. They asked Defendant and driver to exit the vehicle so officers could perform the probable cause search. As Defendant was preparing to exit the vehicle, Officer asked if he had any weapons on him. Defendant responded that he had a firearm, which was located on the side of the passenger seat. Officer found a black nine-millimeter handgun underneath the front passenger seat.

Defendant was charged with unlawful possession of a firearm by a person previously having been adjudged a ward of the court (Pen. Code, § 29820).

Defendant moved to suppress the MJ and gun. Denied. The Court of Appeal, 2-1 per Kraus J., affirmed. Dissent by Duarte, J.

Since the passage of Proposition 64,courts have held that lawful possession of marijuana in a vehicle, by itself, does not provide probable cause for a warrantless search on the theory that there may be a greater, unlawful amount of marijuana in the vehicle…. [W]hile possession of a lawful amount of marijuana alone is insufficient to establish probable cause, it may support a finding of probable cause if it is coupled with other factors contributing to a reasonable belief that the vehicle contains contraband or evidence of criminal activity.

***

Defendant’s principal argument is that small amounts of “stray marijuana” scattered around the floorboards of a vehicle does not provide probable cause for a search….The People argued that, based on the totality of the circumstances, the police had probable cause to conduct the search based on the evidence that (1) the suspects seemed nervous, (2) the suspects falsely stated there was no marijuana in the vehicle, (3) officers saw a marijuana rolling tray in the back of the vehicle, and (4) officers observed a “usable” amount of loose marijuana scattered on the floorboard.

The court noted that while Proposition 64 decriminalized the use and possession of marijuana in limited circumstances, it did not decriminalize marijuana use and possession in all circumstances, and VC 11362.3 subdivision (a)(4) states that it is unlawful to “[p]ossess an open container or open package of cannabis . . . while driving, operating, or riding in the passenger seat or compartment of a motor vehicle . . . .”

Defendant argued there was no “open container” violation because the marijuana observed by the police officers was not in a “container.”

Defendant’s argument does not hold up under scrutiny. Although the words used in a statute are the most useful guide to its intent, the language of a statute should not be given a literal meaning if doing so would frustrate the purposes of the legislation or lead to absurd results….It would defy logic to conclude that an individual with an unsealed container or open package of marijuana is violating the law, while someone with usable amounts of marijuana scattered loosely on a seat or around the passenger compartment is not.

Ordering Out of Auto Does Not Require Justification

  • Ramirez, 104 CA5 315, 324 CR3 583 (24) #G063224:

Traffic stop. Offs ordered Defendant out of car. Saw handgun. Supp. Rev. Per Mimms, 434 US 106 (77), no “articulable justification” needed for ordering out of vehicle.

Side note: D.A.’s brief said trial court “fabricated” a legal theory to grant the motion. The court here says, “We advise the district attorney in the future to be more cautious and consider his language more carefully when challenging a ruling of a trial court in an appellate brief, or he may be subject to sanctions. Words are to lawyers, as scalpels are to surgeons. They are tools to be used with precision.”

May 20 2024
Probable Cause, Temporary Detention

“Odd” Behavior in “Known Narcotics Area” Not Enough to Justify Detention

     • FLORES, ___ C5 ___, ___ CR3 ___, ___ P3 ___ (24) #S267522

At 10:00 p.m. at night, on a cul-de-sac known for illegal drug and gang activity, police saw Flores standing alone in the street beside a Nissan parked at a red curb. Flores looked at the officers, walked around the back of the car, then “ducked” behind it. The officers pulled up and parked behind the Nissan.

Officer pointed his flashlight into the car and saw what looked like a drug pipe. In response to the officer’s inquiries, Flores said that the Nissan was his and his wallet, and identification, were in the driver’s side door pocket. Guy retrieved the wallet, looked inside, and found a folded dollar bill containing suspected methamphetamine. Officers also recovered a revolver from a backpack.

Flores’s suppression motion was denied. The Court of Appeal, in a 2-1 decision, affirmed.

The California Supreme Court, per Corrigan, J., reverses.

His acts of ducking out of sight, bending with his hands by his shoe, and not acknowledging the officers’ presence, suggest an unwillingness to be observed or interact. But they are not the “consummate act of evasion.” (Wardlow, supra, 528 U.S. at p. 124.) The officers certainly could have continued to observe Flores as he stood on the public street. But the behavior here, while noteworthy, does not support a reasonable suspicion that he was engaged in illegal activity. In short, Officer Guy failed to articulate “more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” (Wardlow, at p. 124, quoting Terry, supra, 392 U.S. at p. 27.)

***

Here, unlike Wardlow and Souza, there was no headlong flight. The other factors discussed by Souza — early morning hour and multiple persons all engaged in evasive conduct — were likewise absent. And, unlike Brown, there was no contemporary citizen request for assistance due to criminal activity in the location where Flores was seen. The circumstances here, viewed in totality, are insufficient to provide reasonable suspicion that Flores was engaged in criminal activity.

Our conclusion does not leave officers without the means to follow up on behavior they view as calling for additional investigation. Flores was present in a high crime area and repeatedly tried to avoid being seen by, or engaging with, the police. hose facts are certainly noteworthy. The officers would have been well within the bounds of the Fourth Amendment to continue to watch Flores as he stood on the street, as did the detective in Terry. They were entitled to approach Flores and engage him in consensual conversation. They could have asked if he needed assistance, or had himself noted anything out of the ordinary in the vicinity. If they made additional observations while doing so, those observations may have changed the calculus. But Flores’s mere refusal to cooperate “d[id] not furnish the minimal level of objective justification needed for a detention or seizure.” (Bostick, supra, 501 U.S. at p. 437; accord, Wardlow, supra, 528 U.S. at p. 125; Royer, supra, 460 U.S. at p. 498 (plur. opn. of White, J.).)

Reasonable Suspicion to Detain Was Not Probable Cause to Search Auto 

  • MOSLEY, 101 CA5 243, 319 CR3 887 (24) #C099530

Sacramento County Sheriff’s Department received a call concerning a group of men in the parking lot of an apartment. The caller said the men were creating a music video, and one of them was holding a handgun. The caller described the man holding the handgun as thin, approximately 16 to 17 years old, and wearing “all black clothing.” Deputies and detectives from the Gang Suppression Unit responded to the call.

The location was in territory claimed by the East Side Pirus gang. A Detective Farrow recognized a “heavyset” man dressed in black as a validated member of the East Side Pirus, with a history of firearm arrests. He also recognized D.M., a juvenile.

The group was instructed to put their hands in the air. D.M. immediately took off running but was apprehended within two minutes. A search of D.M.’s person revealed he was carrying a firearm. A search of D.M.’s car revealed another firearm. All members of the group—including petitioner—were detained.

Petitioner (the “heavyset man”) was patsearched, cuffed, and placed in a patrol car. A Detective Johnson spoke with him and learned he had driven himself to the apartment complex in his wife’s car, which was parked approximately 20 feet away. Johnson twice asked petitioner for permission to search the car. Petitioner twice declined.

The detectives searched the car anyway. They found a loaded magazine on the front right floorboard. They then searched petitioner again. They found a Glock handgun. Petitioner was placed under arrest.

His suppression motion was denied. The Court of Appeal, per Renner, J., reversed.

The People argued the detectives had probable cause to search the car because: 1. Petitioner was a validated gang member with a history of firearms arrests and convictions, who partially matched the description of the person said to be waving a firearm in the music video. 2. His presence in an area known for gang activity, and the filming of the music video—a medium said to convey messages of dominance and power to rival gangs.

The court held: These arguments are misplaced, because they focus on probable cause to arrest or detain, rather than probable cause to search.”

[C]onsidering the totality of the circumstances, we conclude reasonable officers armed with the information known to Detectives Farrow and Johnson would not have believed they had probable cause to search the car for evidence of a crime or contraband because, at that point, they had no reason to believe such evidence or contraband would be found there. We therefore conclude the automobile exception does not apply, and the search of the car was made without probable cause.

Also, detention was also unduly prolonged, because the “man with the gun” was described as thin, approximately 16 to 17 years old. In other words, not “heavyset.” Thus when the detectives caught D.M. and found a gun on him, their mission was complete.

Bulky Jacket, Nervous Look, Awkward Sitting Insufficient to Justify Detention

  • JACKSON 100 CA5 730, 319 CR3 317 (24) #B328954

Midnight, two officers in a cruiser saw Jackson alone in a parked SUV. They pulled alongside, close enough so Jackson would have to squeeze to get out. One officer went to Jackson’s side of the car, the other walked to Jackson’s passenger side. Both shined flashlights.

The officers said Jackson was wearing a “big bulky jacket” on a “hot” and “humid” night. He “was seated kind of awkwardly in the driver’s seat.” And when they approached in the dark and shined flashlights on him, he looked “uncomfortable and kind of nervous,” like he was “surprised to see us.”

The Court of Appeal, per Wiley, J., reversed the denial of Jackson’s suppression motion. “Collectively, these justifications did not create a reasonable suspicion of criminal activity. The detention was invalid.”

Sep 19 2023
Auto Searches, Probable Cause, Probation/Parole Searches, Search Warrants

P-C to Search Passenger Area of Car Did Not Extend to Trunk

  • LEAL, 93 CA5 1143, 311 CR3 540 (23) #C096463

Officers were surveilling a funeral because they expected a criminal street gang connected to prior shootings to be in attendance. An officer observed a juvenile walking and holding his pants up; he later observed a black handgun in his waistband. The juvenile got in Def’s car and lay down, then got out, appearing not to have the weapon. Off thought the juvenile had slipped the gun under the seat.

Defendant drove his car to a barbershop. Another officer detained him and said he was going to search his car. When he didn’t find a gun under the passenger seat, he decided to search the trunk. There he found a loaded Glock handgun.

Def moved to suppress. Denied. The Court of Appeal, per Robie, J., reverses.

A survey of cases applying the automobile exception reveals courts generally find warrantless searches of trunks and other enclosed compartments in a vehicle justified in three categories of circumstances: (1) officers have probable cause to believe contraband or evidence of a crime will be found specifically in the trunk or other enclosed compartment; (2) a search of the passenger compartment reveals contraband or other evidence generating further probable cause to search the trunk or other enclosed compartment; or (3) probable cause exists as to the entire car (i.e., that the contraband or evidence of a crime will be found somewhere in the car). The search of the trunk here does not fit within any of these categories.

Holding:

We hold that when an officer has probable cause to believe contraband or evidence of a crime will be found specifically in the passenger compartment of a vehicle (as compared to having probable cause to believe it will be found somewhere in the vehicle), and no other subsequent discovery or information provides further probable cause to believe the evidence will be found in the trunk, an officer’s search of the trunk exceeds the permissible scope of a warrantless search under the automobile exception.

Descriptions of Child Porn Were Adequate to Establish P-C

  • Wadleigh, 93 CA5 531, 310 CR3 948 (23) #A165017

Two search warrants issued re: child porn. In the affidavit, no images were attached, only four descriptions of the images. Def. moved to suppress, arguing that the warrants authorizing the two searches were invalid because their descriptions of four images in his electronic accounts lacked sufficient factual detail from which the magistrate could determine that (1) the subjects were minors and (2) the images depicted sexual conduct within the meaning of section 311.4, subdivision (d)(1).

1538.5 denial affirmed.

The court agreed with Wadleigh that the preferred course of action in such matters would be to attach actual images. However, there was enough info in the descriptions to establish P-C:

[W]e agree with Wadleigh that “a neutral and detached magistrate” (Illinois v. Gates, supra, 462 U.S. at p. 240), should in general view suspected images of child pornography and make the ultimate determination that the depicted individuals are minors. On the facts here, however, we conclude that the magistrate had a substantial basis to conclude the images depicted minors.

There was a Franks issue regarding the description of the first of the images. Under Franks v. Delaware 438 US 154 (78), the Supreme Court held that, where a “defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included . . . in [a] warrant affidavit,” and then proves the statement was reckless or intentional, “the affidavit’s false material [is] set to one side.” . . . If “the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded . . . .”

The court here concluded that, setting the first image to one side, the other descriptions established probable cause for the searches.

Auto Stop for Registration Was Unduly Prolonged

  • SUGGS, 93 CA5 1369, 311 CR3 739 (23) #C096555

Def’s car was stopped for having paper plates, and Off not seeing paperwork displayed in the window as required by law. On approach, the Off did see the paperwork attached to the darkly tinted window. He proceeded to question Def and passenger, ask for ID, and if there was anything “crazy” in the car. He also asked about probation status.

Off then asked for consent to search the car. Def declined. Off went back to his patrol vehicle then returned and informed Def and his passenger that they both had suspended licenses, the passenger was on probation for “possession of firearms stuff and a couple other things,” and he was going to conduct a probation search.

The search turned up a concealed firearm and ammunition in a satchel on the floor behind Def’s seat that was within the passenger’s reach. Based on that discovery, Off searched the entire vehicle and found a scale and a cigarette box holding 30 pills of a controlled substance in a compartment near the steering wheel.

Def’s motion to suppress was denied. The Court of Appeal, per Boulware Eurie, J., reverses.

We agree the detention became unlawful when (1) the purpose of the stop completely dissipated (when the officer saw the documents in the window and thus realized that defendant had not committed the Vehicle Code violation that was the purpose of the stop), and (2) the officer then made inquiries aimed at finding evidence of ordinary criminal wrongdoing.

GPS Tracker Placed on Car Was Permissible as Parole Search

  • Session, 93 CA5 723, 311 CR3 363 (23) #G060536

String of burglaries in Orange County. Offs stopped white BMW with Def driving. Off placed a GPS tracking device on the car before allowing it to leave. Car was later stopped after a chase. Phones and other items linked to burglaries were recovered.

Def moved to suppress, arguing that placing the GPS tracker was an impermissible warrantless search because the Off’s knowledge of his parole statues was “vague or uncorroborated.” Denied. Affirmed by the Court of Appeal, per Moore, J.

[W]hen a defendant is on parole, the source of the officer’s knowledge is not legally meaningful. Defendant, in support of the contention that the officer’s knowledge must come from an official source, relies primarily on a case involving a probationer, not a parolee. (People v. Romeo (2015) 240 Cal.App.4th 93)

May 18 2018
DNA, Probable Cause, Search & Seizure Law, Stop & Frisk

DNA Sample Requirement for Serious Offenses Doesn’t Violate 4th

  • Buza, 4 C5 658, 413 P3 1132 (18) #S223698:

San Francisco police saw Def. running away from a police car that had burning tires. They found Def. hiding nearby and searched him. Matches in his pocket, a container of oil in his backpack, and a road flare and a bottle containing a liquid that smelled like gasoline were in the area where he had been hiding.

Def. was arrested and taken to county jail. A sheriff’s deputy told Def. he was required by law to provide DNA via swab, and warned him that refusing was a misdemeanor. Def. refused. He was subsequently convicted of misdemeanor refusal.

The case went up and down a couple of times, during which time the United States Supreme Court decided Maryland v. King (2013) 569 U.S. 435, which held that “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Which meant that Mr. Buza loses his appeal on the refusal rap because he was booked, upon probable cause, for felony arson. Yet:

Our holding today is limited. The sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require the defendant in this case to swab his cheek as part of a routine jail booking procedure following a valid arrest for felony arson. Because we conclude the requirement was reasonable as applied to defendant, we hold he is subject to the statutory penalties prescribed in Penal Code section 298.1.

 

No Stop & Frisk For Visitor at Home of Probation Search

  • GUTIERREZ, 21 CA5 1146, 230 CR3 915 (18) #F074601:

Kern County sheriff’s deputies went to the residence of one Beltran to conduct a probation search. Def. Gutierrez, who did not live at Beltran’s house, was visiting him at the time.

They ordered Beltran out of the house, and Def. with him. Patdown search of both, then Def. ordered to sit on porch. 30-50 minutes went by, Deputy called dispatch for info on Def., got back info that Def. was on PRCS—Post-Release Community Supervision, a form of parole.

Def. was then given a more intrusive patdown and his car was searched. In the car they found a 20-gauge shotgun round, a digital scale, and 0.93 ounces of methamphetamine.

Def. was charged with meth for sale and ammo possession by “prohibited person.” Pen. Code § 30305, subd. (a)(1).

His motion to suppress was denied. The Court of Appeal, per Smith, J., reversed.

Turning to the instant case, Terry, Summers, and Glaser make clear that our task is to balance “the extent of the intrusion against the government interests justifying it,” and to consider whether the detention was supported by “‘articulable and individualized suspicion.’” … Here, Gutierrez’s detention appears to be moderately intrusive, even if not greatly so. There is no evidence that officers had their guns drawn. On the other hand, Gutierrez was ordered out of the house, subjected to a patdown search on the front porch or in the front yard, and directed to sit on the front porch evidently for the duration of Beltran’s probation search, a period ranging from 30 to 50 minutes.

***

Furthermore, evidence of an independent investigatory purpose is apparent, in that Simmons had obtained identifying information from Gutierrez and after, or at least well into, the probation search, asked dispatch to check whether Gutierrez was subject to search terms himself. The detention appears to have been unduly prolonged for this purpose, which was unrelated to the probation search of Beltran.

***

Finally, we turn to the potential justification of officer safety. Even were we to assume, without deciding, that the need to ensure officer safety justified a limited detention and patdown search of Gutierrez, here the detention continued for approximately 30 minutes or more after Simmons had patted down both Gutierrez and Beltran and determined that each was unarmed… The applicable circumstances do not reflect “articulable and individualized suspicion” to justify such an extended period of detention for purposes of officer safety.

 

Search of Car Two Blocks From Arrestee is Invalid; P-C of Contraband Saves it

  • Johnson, 21 CA5 1026, 230 CR3 869 (18) #B282810:

Officer monitoring the Nickerson Garden Housing Development on closed circuit TV saw Def. produce a knotted clear plastic bag and pour an off-white, rock-like substances into his left hand. A woman picked out one of the rocks with and handed what appeared to be a $5 bill to Def.

Def. drove his car and parked. He was stopped by officers two blocks away and pat searched. No money or drugs.

Two officers went to Def’s car, which had a woman in the driver’s seat smelling of marijuana, with a baggie of the hippie lettuce on the seat. Search of the car. In the armrest of the rear passenger door they found a clear plastic bag containing several off-white solids that appeared to be rock cocaine, and a $5 bill.

Def. challenged the search on two grounds. 1) it was not a valid search incident to arrest; and 2) there was no P-C to believe the car had contraband.

As to the first, the Court of Appeal agreed. “Because it did not take place “where the suspect was apprehended,” as posited by Justice Scalia (Thornton v. United States, supra, 541 U.S. at p. 630 (conc. opn. of Scalia, J.)), it was not a valid search incident to Johnson’s arrest.”

As to the second:

Because Johnson had entered his car immediately after the transaction with the woman, Owens had a substantial basis to believe that Johnson left the plastic bag with the remaining rock-like objects and the money he had been paid in the car and that a search of the vehicle would, therefore, disclose contraband or evidence of criminal activity. In short, Owens had probable cause to search the car under the automobile exception to the general prohibition on warrantless searches.