Category Archives: Probable Cause

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.