- EDGERRIN J., 57 CA5 752, 271 CR3 610 (20) #D07646:
Defendant and co-defendant, Jamar D., appealed the denial of their motion to suppress. The Court of Appeal, per Dato, J., reverses and remands.
Facts:
After receiving a citizen’s tip that Black males in a Mercedes were “acting shady,” four San Diego Police Department (SDPD) officers drove to the scene in two marked vehicles, activating emergency lights in one. Parking behind the Mercedes, the officers positioned themselves beside each of its four doors and asked the three teenagers inside for their names and identification. A records check later indicated that the driver was on probation subject to a Fourth Amendment waiver. The officers searched the vehicle and recovered a loaded firearm and sneakers linking the minors to a recent robbery.
Issues:
- Was this a consensual encounter or a detention?
- If it was a detention, was it justified?
- If it was not justified, were there “other facts” that could make it so?
The Court held that this encounter was a detention:
Though there is no bright-line rule that activating lights always constitutes a detention, the “Supreme Court has long recognized that activating sirens or flashing lights can amount to a show of authority.” (Brown, 61 Cal.4th at pp. 978, 980.)
Even if a stop did not occur with the officers’ arrival on the scene, it plainly occurred immediately thereafter when four officers stepped out of their vehicles after parking and walked to each door of the sedan for the admitted purpose of preventing its occupants from leaving. The minors were directed to roll down their windows, hand over proof of identification, and provide their names, addresses, and birthdays. When Edgerrin asked if he could call his father, Officer Williams ordered him, “Stay off this phone. I don’t want you to do any of that kind of stuff, okay?”
The court held that the detention was not justified by the “vague citizen’s tip.” The court remanded for further findings to determine whether the officers had enough additional information to constitute reasonable suspicion.
The court added this:
We pause here to clarify that, confronted with a tip that was insufficient to create reasonable suspicion, officers were nonetheless entitled to investigate further. As the juvenile court stated, they had a right to drive to the location after receiving the tip. Once there, they could have made additional observations before approaching or attempted a consensual encounter by asking if the minors were willing to answer a few questions. What they could not do, without more, was immediately detain the minors.
Search of Defendant’s Car Upheld Based on Passenger’s Probation Status
- Maxwell, 58 CA5 546, ___ CR3 ___ (20) #C080890:
Two different searches at issue in this one.
Officers received an anonymous tip about the location of one Christy Scarbrough, who at the time had four outstanding arrest warrants and was on searchable probation. They drove to that location and spotted Scarbrough in the passenger seat of a car. After Scarbrough exited the car, one officer arrested her and another spoke briefly to the car’s driver, the Defendant.
Def. several signs of being a drug user. Based on Scarbrough’s searchable probation status, the officer ordered defendant out of his car and searched the car. During the search, the officer found multiple used hypodermic needles under the driver’s seat, a spoon with soot on its underside and brown residue on its inside, a digital scale, multiple cell phones, and several pieces of what the officer believed was black tar heroin. Arrest, search of Def. and car. The officer later searched the motel where Scarbrough and Def. were staying and found multiple used and unused hypodermic needles and 25.9 grams of black tar heroin. Def. was charged with possessing heroin with the intent to sell and with possessing drug paraphernalia.
Several months later Def. was let out of jail on bail with a 4th Amendment waiver search condition. An officer relied on these conditions to search Def’s person, car, and home. At Def’s home, the officer found 44 methadone pills packed in four separate plastic bags. Def. was charged with possessing methadone with the intent to sell.
These charges were consolidated. Def. filed two motions to suppress. Both denied. The Court of Appeal per Blease, J., affirmed.
As to the first search, of the car, and citing Schmitz 55 C4 909 (2012) [officer may search 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], the court held the same rationale applies to a probationer (here) as to a parolee (Schmitz).
As to the second set of searches, a little wrinkle: shortly after they were effectuated this court, in a previous consideration of the bail terms, held that they were improperly imposed. As the saying goes, timing is everything. These searched are upheld under the Good Faith Exception.
Lawful Possession of MJ in Car is No P-C to Search
- HALL, 57 CA5 946, 271 CR2 793 (20) #A157868:
Def. was pulled over for a vehicle-equipment violation in 2018, a police officer observed in the car “a clear plastic baggie” of what appeared to be marijuana. Based on this observation, two police officers searched Hall’s car and found a gun in a closed backpack, resulting in criminal charges against Hall. The trial court denied Hall’s motion to suppress the evidence found in this search.
The Court of Appeal, per Miller, J., reversed.
Since the passage of Proposition 64 by voters in 2016, however, it has been legal for persons 21 years of age and older to possess and transport small amounts (up to 28.5 grams) of marijuana. (Health & Saf. Code, § 11362.1, subd. (a)(1).) We now join those courts that have held the lawful possession of marijuana in a vehicle does not provide probable cause to search the vehicle. (See People v. Lee (2019) 40 Cal.App.5th 853, 865–867; People v. Shumake (2019) 45 Cal.App.5th Supp. 1, 6; People v. Johnson (2020) 50 Cal.App.5th 620, 634; People v. McGee (2020) 53 Cal.App.5th 796, 801–802.)