Category Archives: Search Warrants

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Generally, an unconscious or incapacitated person is “deemed not to have withdrawn his or her consent” and a blood or breath test may be administered without giving any admonition about loss of driving privileges.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

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 17 2023
Search Warrants

Geofence Search Warrants

  • Meza, 90 CA5 520, 307 CR 235 (23) #B318310:

What the heck is a “geofence”? Well, it’s a virtual fence around a physical location. Geofencing is a type of location-based targeting. For example, a user can set it up so when he and his enter a defined geographical boundary, the user gets an alert. A student might walk near a computer store, and then get a text message that says, “Today only! Buy a laptop and get an e-reader free!”

If that’s your idea of a good time, have at it, but, as Samuel Goldwyn used to say, include me out.

Anyway, law enforcement can request a “geofence warrant” to access device location data gathered by large tech companies, like Google. While this data is typically anonymized (there’s another word for you), it can be “used in conjunction with other investigative techniques to tie devices to specific users—and identify persons of interest in a criminal investigation.” [Quoting Meza]

In this case, Daniel Meza and Walter Meneses were identified as suspects in the murder of Adbadalla Thabet after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as Thabet on the day of his murder. After their motions to quash and suppress evidence were denied, Meza pleaded guilty to first degree murder; and Meneses pleaded no contest to second degree murder.

On appeal, Def’s contended the trial court erred in denying their motion to suppress, arguing the geofence warrant violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and did not comply with the California Electronic Communications Privacy Act (CalECPA) of 2016 (Pen. Code, § 1546 et seq.) The court holds that the geofence warrant satisfied the requirements of CalECPA, but lacked the particularity required by the Fourth Amendment and was impermissibly overbroad. However, suppression denial is affirmed under the Good Faith Exception.

Given the dearth of authority directly on point and the novelty of the particular surveillance technique at issue, the officers were not objectively unreasonable in believing the warrant was valid, even if the issue, upon close legal examination, is not a particularly close one.

California Supreme Court

When is a Prosecutor Entitled to a 1538.5 Continuance?

Continuances in criminal cases are covered by PC 1050:

“Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause.” (§ 1050, subd. (e).) Convenience of witnesses is, however, a factor for the court to consider both in deciding whether good cause has been shown and in selecting the new date. (§ 1050, subd. (g)(1).) If the court concludes that a continuance is necessary, it must state on the record the facts justifying that finding. (§ 1050, subd. (f).) Any permitted continuance must be limited to “only . . . that period of time shown to be necessary by the evidence considered at the hearing on the motion.” (§ 1050, subd. (i).)

Section 1050 provides for two different good cause showings. If the moving party has not complied with the procedures of subdivision (b), it must show that there is good cause to excuse that failure. If such a showing is not made the court may impose sanctions. As to the merits of a continuance motion, subdivision (e) requires a good cause showing that a continuance is necessary.

Trial courts enjoy broad discretion to deny continuances unsupported by a showing of good cause. However, established case law holds that it is an abuse of discretion to deny a trial continuance, solely because good cause is lacking, when doing so will result in dismissal of the charges and the continuance can be granted without violating the defendant’s speedy trial rights. (See People v. Ferguson (1990) 218 Cal.App.3d 1173.

Re: a 1538.5 motion, if the challenged evidence is so critical that its suppression would require dismissal of the case, the court must generally grant a continuance unless dismissal would be in furtherance of justice. The burden is on the prosecution to show an inability to go forward without the evidence in dispute. The court, however, must ultimately determine whether dismissal of the case is reasonably probable absent a continuance.

It is an abuse of discretion for a court to deny a continuance within the speedy trial period, absent countervailing factors warranting dismissal.

In Brown, 4 C5 530, 306 CR3 25, 525 P3 1036 (23) #S271877, the California Supreme Court reverses the Court of Appeal, and holds that it was an abuse of discretion to deny a continuance. And:

In determining whether the denial of a continuance will make it reasonably foreseeable that a case will be dismissed, the court must consider the totality of the extant circumstances. One of the factors to be considered is the People’s representation that they will be unable to proceed without the challenged evidence. But the court must independently examine that representation. In the end it is the court’s determination, not the People’s representation, that is dispositive. The reasonable foreseeability standard comes into play when the case cannot be tried absent the evidence, not when the case will simply be more difficult to prove.

Additionally:

This is not to say that the court’s hands are tied when the prosecution seeks a continuance without satisfying section 1050’s requirements. It may impose fines, refer the prosecutor for discipline, and impose any other sanctions at its disposal short of dismissal for procedural noncompliance. (§ 1050.5, subd. (b); see § 1050, subd. (b).) “And, of course, the trial court may exercise its discretion in selecting the length of a continuance; it need not necessarily accede to the prosecutor’s preferred date.” (Ferrer, supra, 184 Cal.App.4th at p. 886.)

May 20 2022
Mistake of Law, Patdown Search, Search Warrants

Officer’s Mistake of Law Was Unreasonable

  • HOLIMAN, 76 CA5 825, 291 CR3 840 (22) #A160142:

A rookie police officer was driving in her patrol car in downtown Vallejo, California. She had been a member of the police force for only one month and was on patrol accompanied by a field training officer for mandatory on-the-job training.

She saw Holiman’s car when her patrol car came to a stop at another intersection. Holiman’s car came to a stop at a stop sign on the cross-street to her right, and then make a left-hand turn in front of her patrol car and onto the street she was stopped on, in the opposite direction her patrol car was facing.

At the suppression hearing, Off. testified that as Holiman made the left turn, she saw him “look at me and then quickly look away as if to want to hide his face” which she “found . . . curious,” and “so I turned around and followed him.”

She followed him for about two short city blocks until the two cars reached another intersection with a three-way stop sign. Holiman came to a full stop, and then he proceeded ahead and made the right turn. There, she testified, he turned on his turn blinker “just prior” to making the right-hand turn.

She continued following Holiman’s car for about four more minutes then activated her emergency lights. Holiman pulled over and she approached.

Holiman disclosed he was on parole and, after Off. confirmed he was subject to search terms, she searched his person and found a pill bottle and some cash, and then placed him in handcuffs in the backseat of her patrol car. In the ensuing search of his car she found a loaded semiautomatic handgun, a baggie containing methamphetamine and a jar containing marijuana. On his phone were texts indicating his involvement with possible drug sales. He was then arrested.

Holiman moved to suppress. The trial court denied the motion, finding the Off. had a reasonable suspicion that Holiman had violated the Vehicle Code and thus the stop was lawful.

The Court of Appeal, per Stewart, J., reversed. The issue was whether Holiman violated Vehicle Code Section 22108, which provides: “Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning.”

Holiman didn’t do that. But wait! There is also Section 22107: “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” (Italics added.)

But the only vehicle around was the police car, which clearly was not affected. So the Off. made a mistake about the law. Now the question becomes was that a reasonable mistake? No.

The People respond there was no Fourth Amendment violation because Holiman did violate the law, and that even if he did not, Officer Bellamy had an objectively reasonable basis to think the law required Holiman to signal his right-hand turn sooner than he did and thus at worst made a reasonable mistake of law in interpreting the relevant statutes. In reply, Holiman concedes that a reasonable mistake of law can justify a warrantless search but contends it was not objectively reasonable for Officer Bellamy to think his right-hand turn violated the law. We agree with Holiman.

Totality of Circumstances Not Enough to Establish Reasonable Suspicion for Patdown Search

  • PANTOJA, 77 CA5 483, ___ CR3 ___ (22) #A162591

In a “high crime area,” a Vacaville police officer, Hill, stopped a silver Dodge for non-working brake and license plate lights. Hill recognized Def. and knew he “had a history of violence and firearm possession, and he was at the time an investigative lead in a homicide.” Hill saw no signs defendant was intoxicated. Hill asked if there was “weed” in the car, and defendant said he did not smoke weed. Hill asked defendant if he could take a look in the vehicle for contraband, and defendant said no.

Hill ordered defendant out. Defendant was wearing “baggy” clothes and a hoodie. Hill lifted the front of the hoodie and found a revolver.

Defendant was charged with possession of a firearm by a felon. He moved to suppress. The trial court granted defendant’s motion and dismissed the case. The People appealed.

The Court of Appeal, per Miller, J., affirmed.

To justify a pat search for weapons an officer must have a “reasonable suspicion” the detainee may be armed and dangerous. Terry v. Ohio, 392 US 1 (68). The “totality of the circumstances” in this case did not meet that standard.

When asked whether he believed defendant was armed or dangerous, Hill cited (1) the fact defendant was wearing baggy clothing that “naturally has bulges in it” and (2) “defendant’s history of weapons” as reasons to pat him down. Asked again, “did you believe he was presently armed and dangerous?” Hill responded, “There’s a good possibility or chance, yes.” The trial court found Hill’s second response indicated his belief was “all speculative, and he didn’t have any specific or articulable facts to believe that this individual was presently armed or dangerous.”

Considering the evidence in the light most favorable to the trial court’s ruling and deferring to the court’s implied factual and credibility findings, we conclude the court properly granted defendant’s motion to suppress.

Brief Stop at Gang Hangout Enough PC for Search Warrant

  • Delgado, ___ CA5 ___, ___ CR3 ___ (22) #B309947:

Def. was member of Highland Park gang. Offs watched his house as “well-documented hangout” of the gang. The observed a black Lexus SUV drive up. Two passengers went in the house. They came out 3 – 5 minutes later, got in the SUV. Def. came out to the SUV and leaned in the passenger-side front window. Offs concluded Def. was “possibly delivering narcotics and/or firearms and then immediately returned to his residence as the black Lexus drove away.”

Offs stopped the Lexus. Parole search found cash, guns, drugs. Offs then applied for a search warrant for Def’s house. The seized a phone with videos of Def. orchestrating nine beatings to initiate new members into the Highland Park gang.

The trial court denied the motion to suppress the video evidence of Def’s role in these beatings.

The Court of Appeal, 2-1, affirmed. The majority, per Wiley, J., holds that the affidavit presented a reasonable support to believe this was a transfer of illegal contraband from the hangout to the SUV. “The purpose of the visit probably was not social; people rarely drive in Los Angeles traffic for a social visit of three to five minutes while the driver waits in the car.”

Stratton, J., dissented. Was possession of drugs and a gun in the SUV, after a 3-5 minute visit to a hangout, enough for probable cause to believe the evidence came from the house? “I conclude the answer is ‘no.’ ”