- 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.