Category Archives: Temporary Detention

Nov 19 2024
Temporary Detention

Pretext Stops and the Timing of Prolonged Detentions

• Valle, 105 CA5 195, 325 CR3 730 (24) #A169080:

Santa Rosa Police Officer Wright was on patrol with his partner. Wright saw defendant Valle pumping gas at a local station. He recognized Valle from prior investigations as an active gang member and noticed that the vehicle did not have a front license plate. He decided he would make a traffic stop due to the missing plate. Wright did not suspect Valle of any other illegal activity at that time.

Three minutes before the stop, Wright’s partner called a canine officer to assist. Wright intended to have the canine conduct an open-air sniff of Valle’s vehicle for possible weapons. Wright was concerned about officer safety because of a gang feud.

They pulled Valle over and Wright informed him why he was being stopped. He ran a license and registration check, which came back valid, along with Valle’s prior arrests for drugs and firearms, and a felony conviction. Wright began writing a citation for the missing plate when the canine officer arrived.

A dog alerted to the driver’s side door. Wright found a loaded handgun in the console.

The trial court granted Valle’s suppression motion, holding that this was a pretext stop. The officers didn’t write the ticket at the gas station, but let Valle drive off so they could stop him when the dog was on the way. The judge also held that the detention was unduly prolonged.

The Court of Appeal, per X, J, reversed.

On the issue of unduly prolonged detention:

[T]he court held that Valle’s detention was unduly prolonged because the traffic stop should have begun earlier, at the gas station, rather than in the parking lot after Valle drove approximately a quarter of a mile. … A traffic stop begins for purposes of the Fourth Amendment when an officer pulls a vehicle over for a traffic infraction. (People v. McDaniel (2021) 12 Cal.5th 97, 129–130; accord, People v. Ayon (2022) 80 Cal.App.5th 926, 936 (Ayon); id. at pp. 937–938 [“the relevant time frame started from the point at which the car was first pulled over and ended once the dog alerted to the presence of drugs in the car”].) We know of no case holding that a Fourth Amendment seizure occurs at any time prior to effectuating the stop, and counsel for Valle has cited none.

The defense contended that the stop was pretextual, and that VC 2806.5 (which went into effect 1/2024) disallows such stops. The statute requires that a peace officer making a pedestrian or traffic stop, before engaging in any questioning relating to “a criminal investigation or traffic violation,” must inform the pedestrian or driver of the reason for the stop, unless withholding the reason is necessary to protect against an imminent threat to life or property.

[The] trial court apparently also based its decision to grant the motion to suppress on its belief that the new legislation would make pretext stops illegal. his was incorrect. The United States Supreme Court has long held that, under the Fourth Amendment, “the constitutional reasonableness of traffic stops” does not depend “on the actual motivations of the individual officers involved.” (Whren v. United States (1996) 517 U.S. 806, 813.)

Further Thoughts on the “Community Care” Exception*

  • CANIGLIA, 593 US ___, 141 SC 1596, 209 LE2 604 (21) [*from SCOTUSblog and other sources]

Edward Caniglia had an argument with his wife, during which he allegedly threatened to harm himself. His wife left and later requested a wellness check from the police. Upon arrival, the officers persuaded Caniglia to undergo a psychological evaluation. While he was away, they entered his home without a warrant and seized his firearms, allegedly for his safety. Caniglia later sued, arguing that the officers violated his Fourth Amendment rights by entering his home without a warrant.

The core legal question was whether the “community caretaking” exception—originating from the 1973 case Cady v. Dombrowski—applies to home entry. In Cady, the Court had permitted warrantless searches of vehicles under certain conditions, based on the idea that police sometimes act outside their typical law enforcement role to ensure public safety. This exception allowed officers to enter vehicles without a warrant in situations posing a danger to the community or the vehicle’s owner.

In a rare unanimous decision, the Supreme Court ruled that the “community caretaking” exception does not extend to the home. Justice Clarence Thomas, writing for the Court, emphasized that the home has a unique place in Fourth Amendment jurisprudence as a protected domain. The Court underscored the importance of maintaining strict limitations on warrantless searches and seizures within private residences.

Justice Thomas wrote, “What is reasonable for vehicles is different from what is reasonable for homes.” The Court made it clear that Cady was limited to vehicle searches and that expanding the exception to homes would pose a substantial risk to individual privacy rights. The decision also highlighted the constitutional priority placed on privacy within one’s home, a sphere where police power should not intrude without a clear and compelling justification, typically requiring a warrant.

The Court’s decision reaffirmed the Fourth Amendment’s protection of the home from unreasonable searches and seizures. The ruling signifies a check on the expansion of police power into the realm of individual privacy, especially in personal spaces. If the “community caretaking” exception had been extended to homes, it could have potentially broadened police authority to enter private residences without judicial oversight, creating the risk of abuse and diminished accountability.

This decision also distinguishes between the state’s interest in promoting public welfare and the individual’s right to be free from unwarranted government intrusion. The ruling implies that while the government can intervene in certain situations to protect public safety, such interventions should not violate constitutional rights unless exceptional and well-defined circumstances exist.

Furthermore, Caniglia provides insight into the Court’s approach toward “reasonableness” under the Fourth Amendment. The decision reaffirms that what may be considered reasonable for vehicles or public spaces cannot necessarily be assumed reasonable within a home. This line of reasoning underscores the Court’s dedication to the idea that homes occupy a uniquely protected space in American law.

Caniglia also illustrates the tension between public safety interests and individual rights—a recurring theme in Fourth Amendment jurisprudence. By narrowly construing exceptions to the warrant requirement, the Court reinforces the principle that any erosion of Fourth Amendment protections must be closely scrutinized. This aligns with other recent decisions emphasizing limitations on law enforcement’s ability to circumvent the Fourth Amendment in situations that do not involve criminal activity.

This ruling reflects the Court’s emphasis on safeguarding civil liberties even in cases involving mental health or potential harm, illustrating a nuanced approach to balancing individual rights with community needs. The Court’s stance in Caniglia signals that while mental health and safety concerns are valid, they cannot justify arbitrary intrusions into personal spaces without proper legal safeguards.

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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.”

Mar 19 2024
Privacy, Temporary Detention

Officer Flashlights and Proximity is a Detention

• 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:

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Nov 18 2023
Consent, Patdown Search, Temporary Detention

Detention and Patdown of Driver Justified by Officer Safety

• Esparza, 95 CA51084, 313 CR3 360 (23) #D080703:

After defendant Christopher Esparza was pulled over for a Vehicle Code violation, a detective who specializes in gang enforcement recognized him and two of his passengers as members of a local gang. The detective thought Delfino Osnaya, one of the passengers, was likely to be armed and told the other officers they needed to search him. After their patdown of Osnaya yielded a loaded gun, the officers searched Esparza as well and found another loaded weapon.

The detention lasted seven minutes.

Esparza’s 1538.5 motion was denied. The Court of Appeal, per Dato, J., affirmed.

Esparza argued: (1) the officers lacked reasonable suspicion that he was armed and dangerous when they conducted his patdown, and, in any event, (2) the detention lasted too long because the traffic stop went beyond what was necessary for the officers to issue him a citation for tinted windows.

By the time officers conducted the patdown search of Esparza, they had already gathered a considerable amount of specific information. Esparza had been identified by a veteran gang detective as an established gang member who was driving a car with (at least) two other gang members.   At the moment of the traffic stop, he was driving through contested territory claimed by both his gang and a rival group. Each of the gangs were known for violent activity. A ghost gun with a magazine of ammunition had just been found on one of his passengers.   Given that “consideration of the modes or patterns of operation of certain kinds of lawbreakers” is a permissible point of reference from which a “trained officer [can] draw[ ] inferences and make[ ] deductions” (Cortez, supra, 449 U.S. at p. 418), there was enough here to reasonably infer that Esparza may have been armed and dangerous in that moment. To say otherwise would be tantamount to undermining all of the specialized knowledge about gang operations gathered by investigators who are deeply immersed in tracking such activity and would impermissibly shrink Terry stop analysis to an artificially confined scope.

***

Esparza’s second argument focuses on the length of his detention, asserting it was unduly prolonged because it went beyond the officers’ only necessary tasks: to run his license and then issue him a citation for tinted windows. After conducting a thorough review of how the traffic stop proceeded, we are convinced that at each juncture the officers acted within the bounds of the law. Any delay that resulted from Arreola’s decision to wait for backup was reasonable in light of his justifiable safety concerns. As a result, the brief investigation of Osnaya that took place in the interim did not prolong the detention.

***

Finally, we address Esparza’s reliance on People v. McGaughran (1979) 25 Cal.3d 577, 581 (McGaughran), which is distinguishable on the facts alone. In that case, an officer stopped a car for driving the wrong way on a one-way street, and then detained the car for over a half hour while he checked for warrants, called for backup, and rechecked the warrants. He spent a significant portion of that time sitting in his car alone without displaying the kind of concern for officer safety present in this case. In contrast, the total time between the initial detention of Esparza’s car and his patdown search was about seven minutes.

Consent to Search Car Was Coerced By Threat to Tow

  • BOITEZ ___ CA5 ___, ___ CR3 ___ (23) #C098102:

Officer pulled defendant over for failing to come to a complete stop at an intersection. Off. asked Def. for license, registration, and insurance. Def. had none. It was Def’s mother’s car.

Off. asked for consent to search car. Def. looked nervous. Off. said, “Look, I’m not giving you a ticket for running the stop sign, I’m not giving you a ticket for the insurance stuff, and I’m not towing your car. That seems like a pretty good deal. If I tow your car, brother, you ain’t getting it back till Monday. That’s the tow plus two days of storage, maybe three . . . .” Def. asked whether his sister, who had a valid license, could take the car. Off. replied, “That’s what I’m trying to work out with you, man. You be cool with me brother; I’ll be cool with you….I’m trying to cut you a break, dude, okay? So if you’re good with that, I’ll cut you a break?” Defendant replied, “Yup,” while nodding his head. Off. subjectively believed he had authority to tow, even though he did not.

Search turned up loaded gun under passenger seat. Defendant was charged with being a felon in possession of a firearm, being a felon in possession of ammunition, unlawfully carrying a loaded firearm, carrying a loaded firearm in a vehicle, and driving with a suspended license. Defendant filed a motion to suppress. Denied.

The Court of Appeal, per Robie, Acting PJ, reversed. People have the burden to show by a preponderance that a defendant’s consent is voluntary.

We hold that the false promise of leniency not to tow the car was a material and inextricable part of the agreement inducing defendant’s consent to the search, and thus, under the totality of the circumstances, defendant’s consent was not voluntarily given. As part of our analysis, we adopt the reasoning of the First Circuit Court of Appeals that the question of voluntary consent cannot be based on the subjective good faith of a police officer in making the false statement that induced the defendant’s consent to search.

Fleeing Officer’s Request Was Resisting/Delaying Arrest

  • In re T.F.-G., 94 CA5 893, CR3 685 (23) #H050112:

San Jose officers in unmarked car stopped near a group of five by a parked red Mustang. They smelled burning MJ and got out to question the people. They pat searched two, then approached Def., a juvenile. The convo went like this:

Off: “Can you come over here for a minute?”

Def.: “For what?”

Off: “Huh?”

Def.: “For what?”

Off: “Just come over here.”

Def.: “For what?”

Off: “Because I asked you to. Don’t make this—”

At which point, Def. took off running. He was tackled, punched, and arrested for resisting or delaying a peace officer (Pen. Code, § 148, subd. (a)). A loaded gun was found in his gym shorts pocket.

Suppression denial affirmed.

T.F.-G. argued that the police officers had not detained or attempted to detain him before he fled, and therefore he was not lawfully arrested pursuant to section 148, and the search of his basketball shorts was not incident to a valid arrest.

The court held that “a reasonable person in T.F.-G.’s position would have understood that the request to go to the officer was mandatory. By the time T.F.-G. fled, the officers were at least attempting to detain him. The officers therefore had probable cause to believe that T.F.-G. violated section 148.”

Jan 20 2023
Auto Searches, Temporary Detention

Police Spotlight on Legally Parked Car, Without More, is Not a Detention

• Tacardon, __ C5 ___, ___ CR3 ___, ___ P3 ___ (22) #S264219:

Deputy sheriff on patrol drove past a BMW legally parked in front of a residence. Smoke emanated from slightly open windows. Deputy made eye contact with the occupants as he drove past. He made a U-turn, parked 15 to 20 feet behind the Beemer, and turned on his spotlight—not his emergency lights.

He then approached the BMW at a walking pace. He did not draw a weapon. A woman sitting in the backseat jumped out of the BMW, said she lived there. Deputy directed the woman to stand near the sidewalk behind the BMW where he could see her.

He smelled MJ from the car, used his flashlight to look at the interior. He saw one large and two smaller clear plastic bags on the rear passenger floorboard containing “a green, leafy substance.”

Tacardon was in the driver’s seat. The deputy asked Tacardon if he was on probation or parole. Tacardon said he was on probation. Search of the car nabbed three bags of MJ and a vial with 76 hydrocodone pills.

Tacardon was charged with possession for sale of hydrocodone and marijuana. His 1538.5 motion was granted, based on the detention of the woman and, ipso facto, Tacardon. The Court of Appeal reversed. In analyzing the deputy’s initial approach, the Court of Appeal expressly disagreed with Kidd, 36 CA5 12 (2019), which found an unlawful detention on similar facts.

The California Supreme Court, per Corrigan, J., granted review to resolve “this conflict in the Courts of Appeal.”

In Kidd, the court observed: “motorists are trained to yield immediately when a law enforcement vehicle pulls in behind them and turns on its lights. Regardless of the color of the lights the officer turned on, a reasonable person in Kidd’s circumstances ‘would expect that if he drove off, the officer would respond by following with red light on and siren sounding . . . .’ ” (quoting People v. Bailey (1985) 176 Cal.App.3d 402)

The Supreme Court majority disagrees, opining that “the use of a spotlight generally conveys a different meaning to a reasonable person than the use of a patrol car’s emergency lights.”

In other words, a reasonable person would feel free to drive off…and that the cops would not follow. Adopting the “totality of the circumstances” test for such situations, there needs to be something “more” than a spotlight on the car.

[W] decline to state a bright-line rule. A court must consider the use of a spotlight together with all of the other circumstances. It is certainly possible that the facts of a particular case may show a spotlight was used in an authoritative manner. These may include flashing lights at the driver to pull the car over or attempting to blind the driver, which would be relevant considerations under the totality of the circumstances….But use of a spotlight, standing alone, does not necessarily effect a detention.

Justice Liu filed a dissent.

I imagine this conclusion comes as news to anyone who has ever had their car illuminated by a police spotlight. The court apparently envisions that a reasonable person in Tacardon’s circumstances would think, “Oh, the officer who just eyeballed me, made a U-turn, pulled up behind me in his patrol car, pointed a bright spotlight at my car, got out of his car, and is now walking toward me isn’t trying to stop me. He just turned on his spotlight to see what’s going on. Good thing he didn’t turn on his emergency lights . . . looks like I’m free to leave.” This strains credulity.

 

Parole Search of Auto Did Not Extend to Locked Glove Box

  • CLAYPOOL, 85 CA5 1092, 301 CR3 858 (22) #C096620:

Brandon Claypool was driving a Honda Accord with two passengers: Malcolm Clay in the front passenger seat, and parolee Carlos Olivia in the rear seat on the passenger’s side. Police followed until Claypool stopped on residential street.

Olivia informed police he was on parole. Offs. ordered all occupants out and did a parole search of the passenger area, then used Claypool’s key to unlock the glove box. They found a gun and ammo. The encounter was captured on police bodycam.

Claypool was charged with possession of a firearm by a felon, with enhancement for a prior strike. His motion to suppress was denied. He brought a timely petition for writ of mandate and a motion to dismiss. The Court of Appeal, per Robie, Acting P.J., sends this back to the trial court with directions to grant the motion.

As articulated in Schmitz, 55 C4 908 (12), a permissible search based on a passenger’s parole status is limited to “those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity.”

Here, the court held that “it does not appear objectively reasonable to believe the back seat passenger, Olivia, might have secreted a gun in the glove box after he saw police.”

 

Minors Smoking MJ in Car Gave P-C to Search Under Auto Exception

  • Castro, 86 CA5 314, 302 CR3 185 (22) #B318174:

Officers saw Castro and another male sitting in a parked car with expired registration, with windows rolled down. There was a strong odor of burning MJ coming from the car.

Officer exited patrol car and made contact with Castro, in the driver’s seat. He recognized the front passenger seat and another male lying in the backseat (who appeared to be hiding) from prior encounters with them, and knew they were minors. He asked Castro if they had been smoking, and Castro said yes. Officer ordered them all out, cuffed them, and searched the car.

He found a nine-millimeter ammunition in the closed center console. He opened the trunk and found an open duffle bag with a loaded nine-millimeter handgun, with no serial number on it.

Castro was charged with carrying a loaded, unregistered handgun in a vehicle. He moved to suppress, contending the search did not fall under the Auto Exception to the warrant requirement. Motion denied.

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

Based on the “strong odor” of “burnt marijuana” emanating from Castro’s car, Castro’s admission he had smoked marijuana, and the fact all occupants of the car were under 21 years of age, the officers had probable cause to believe they would find contraband or evidence of a crime (e.g., marijuana possessed by someone under 21) in the car. We are unpersuaded by Castro’s argument that probable cause did not exist because he told Officer Zendejas he had smoked marijuana two hours before. Officer Zendejas’s belief “that there was still marijuana in the car based on the current smell of marijuana coming from inside the car” was reasonable under the circumstances of this case. Accordingly, we conclude the officers had probable cause to search the car under the automobile exception, and the trial court did not err in declining to suppress the evidence from the vehicle search.

Castro also asserted that “In light of the passage of Proposition 64, police may no longer search an automobile simply because they smell marijuana inside a vehicle stopped for an expired registration.” But because all of the occupants were under 21, it was still unlawful for them to possess any amount of MJ for recreational use.

Sep 21 2018
Temporary Detention

Post-Detention Request For Consent Was Not Another Detention

• Arebalos-Cabrera, ___ CA5 ___, ___ CR3 ___ (18) #D074047

Defendant was part of a group of individuals being surveilled by law enforcement in a multiagency regional narcotics suppression program. After observing what they believed to be suspicious behavior indicative of narcotics trafficking, police officers contacted the California Highway Patrol and identified Def’s tractor-trailer as possibly transporting narcotics.

A CHP officer followed the trailer and made a traffic stop for speeding and weaving. A 15 – 20 minute detention ensued during which Def was questioned, had papers examined, and was even given a field sobriety test—which he passed. He was then told he was “free to leave.” But after a few steps the officer asked Def for consent to search the trailer, and had Def sign a consent form. A dope-sniffing dog hit on a compartment that had a big load of heroin.

Def’s 1538.5 motion was denied, and the Court of Appeal, per Guerrero, J., affirmed.

The issue was whether Def’s detention was over at the time of giving his consent. Def claimed that as he walked away after being told he was free to leave, the officer said, “No. Hold on a second. I want you to sign a consent form.” That, Def argued, was a command, not a request, and that a reasonable person in that circumstance would not feel free to leave.

The court, however, rejects Def’s rendition of the command because the trial court did not find it credible. Oddly, the exact words the officer used are not quoted in this decision. They are characterized as a request (i.e., the officer “asked”). Seems a pretty doggone important piece is missing here.

Admitting there was no California case on point, the court looks to out-of-state and federal citations. It finds one case, Maynard, (D.C. Cir. 2010) 615 F.3d 544, “instructive.” There was a traffic stop and detention, then the driver told he was free to leave. Then the officer said, “Do you mind if I ask you a few additional questions?” This was not a command a stop. Not a demand, as in “I want you to sign.” It was a query, a request.

When it comes to the “reasonable person” test, this difference is quite significant. Would be nice to know what was actually said because it is actually crucial.

Takeaway: The reasonable person test is used when figuring out if there’s a detention or consensual encounter. If there’s a “show of authority” and a reasonable belief you’re not free to leave, it’s a detention. “When the stop is over and its purpose served . . . , mere questioning by officers, without some indicated restraint, does not amount either to custody for Miranda purposes or a seizure under the Fourth Amendment.” But if there is a “command” (the court tacitly admits) the calculus would be different.

Interestingly, no one cites Columbo. Remember, “Oh, just one more thing, sir…”? 

People v. Sacrite Ordered Depublished 

@Sacrite, ___ CA5 ___, 233 CR3 763 (18).

Our @ symbol means a case has been ordered depublished by the Cal. Supreme Court.

In Sacrite, defendant was riding his bike the wrong way in traffic as he was enjoying a beer. Officers stopped him and though he might be UI. Wanting a closer look, one officer noticed “bulges” in the pockets of Def’s short pants. Ahem. One of the bulges was in the shape of a cell phone. Pat down. Officer reached in Def’s pocket because (he testified) he could not “exclude the possibility that what defendant had in his pockets were concealed weapons.” Def. actually had Meth.

The Court of Appeal, 2-1, affirmed the denial of Def’s suppression motion. But Mihara, J., wrote a strong dissent, asserting, “When an officer cannot articulate any fact that supports something more than a mere possibility that a citizen is armed, the officer is not entitled to conduct a pat search.” It’s worth quoting Justice Mihara’s analysis for future reference:

[Officer] Prim’s testimony at the suppression hearing failed to identify any “specific and articulable facts” supporting a reasonable inference that defendant was armed. My colleagues conclude that Prim’s observation of the “bulge” in defendant’s pocket supported an inference that defendant was armed. They rely on the United States Supreme Court’s decision in Pennsylvania v. Mimms (1977) 434 U.S. 106 (Mimms). In Mimms, the defendant was stopped for driving a vehicle with an expired license plate. When the defendant stepped out of the vehicle at the officer’s request, the officer noticed a large bulge under the defendant’s jacket. Fearing that the bulge was a weapon, the officer frisked the defendant and discovered a firearm in the defendant’s waistband. (Mimms, at p. 107.) The United States Supreme Court found: “[T]here is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of ‘reasonable caution’ would likely have conducted the ‘pat-down.’ ” (Mimms, at p. 112.)

Unlike the bulge under Mimms’s jacket, which the officer feared was a weapon, Prim did not claim to fear that the cell-phone-shaped bulge in defendant’s pocket was a weapon. Nor did he identify any specific fact upon which he could have based a reasonable suspicion that the bulge was a weapon. Instead, Prim’s testimony was that he was “unaware if [defendant] had a weapon or not” and could not “exclude the possibility” that the bulge was a weapon. Prim did not even claim that he had a “hunch” that the bulge was weapon.

Recent McNeely Cases Rundown

My thanks to Mr. Al Menaster, guru of the Appellate branch of the L.A. Public Defender’s office, for these squibs on DUI case law after McNeely, 133 S.Ct. 1552 (13) [holding that “where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”]

  • A police officer’s implied consent advisement does not make a blood draw forcible. This is even if the advisement is incorrect. People v. Harris (2015) 234 Cal.App.4th 671
  • The defendant here was involved in an accident and was taken to a hospital, where his blood was taken without a warrant. There is no exception to McNeely’s requirement of a search warrant to forcibly take blood merely because there was an accident. People v. Meza (2018) 23 Cal.App.5th 604
  • The officer misadvised the defendant by failing to tell him that he could take a blood test or a breath test: “But this violation did not prejudice appellant and is of no constitutional significance.” Even if the 4th Amendment did require the officer to comply with the implied consent law, “the blood test result would have been admissible under the inevitable discovery doctrine.” If the defendant had taken the breath test, the officer would have been entitled to insist on a blood test to show that the defendant was under the combined influence of alcohol and drugs. People v. Vannesse (2018) 23 Cal.App.5th 440
  • The defendant here, arrested for DUI, was advised of the implied consent law, but he was not advised that he could refuse and of the consequences of such a refusal. Vehicle Code section 23612 requires an advisement of the consequences of refusal. A person does not have to be advised that he or she can refuse. The defendant “freely consented” to the blood draw. People v. Balov (2018) 23 Cal.App.5th 696

See also:

  • People v. Mason (2017) 8 Cal.App.5th Supp. 11
  • People v. Ling (2017) 15 Cal.App.5th Supp. 1
  • People v. Pickard (2017) 15 Cal.App.5th Supp. 12