- Pride, 31 CA5 133, 242 CR3 297 (18) #SCD272182:
The victim, D.C., got off a trolley in San Diego. He was wearing red Jordan shoes, a hat, a gold chain, and two watches.
D.C. spoke to some men who were looking for a party. D.C. invited them to his hotel and told them he was looking for marijuana. He followed the men into a parking lot where another group of men was standing. D.C. asked where he could get some marijuana. Someone yelled, “This is West Coast” and then pummeled D.C.and took his shoes, hat, iPad, money, watches, and chain.
D.C. called 911. He reported a male with a scar along his jawline was among the individuals involved in the incident. A gang unit detective thought the suspect could be one Chaz Pride. The detective found a video Pride posted on a social media account shortly after the robbery depicting Pride wearing a gold chain around his neck saying, “Check out the new chain, dog.”
A few days later, officers executed a search warrant at Pride’s residence where several items associated with the robbery of D.C. were recovered. A debit card with D.C.’s name on it was recovered on the top shelf of a closet in Pride’s residence. The jacket Pride was wearing in the video was also recovered. When Pride was arrested, he was wearing D.C.’s gold chain.
Pride moved to suppress the video before it was played for the jury. He argued that the detective obtained the video without a warrant by portraying himself as a “friend” to gain access to Pride’s social media account. The court ruled the video was not illegally obtained and there is “no expectation of privacy” when one puts something out “into the ether.”
The Court of Appeal, per McConnell, P. J., affirmed.
Pride voluntarily shared with his social media “friends” a video of himself wearing the chain stolen from D.C. The fact he chose a social media platform where posts disappear after a period of time did not raise his expectation of privacy. Rather, in posting the video message, Pride assumed the risk that the account for one of his “friends” could be an undercover profile for a police detective or that any other “friend” could save and share the information with government officials. As such, there is no Fourth Amendment violation.
Taint of Unlawful DNA Swab Attenuated Over Time With Intervening Circumstances
- Marquez, 31 CA5 402, 242 CR3 530 (19) #G048762:
In 2006, police arrested defendant Marquez in Ventura County on a drug possession offense. Without Marquez’s consent, authorities collected his DNA sample and entered his DNA profile into a statewide database, but Marquez was never charged with the drug offense.
In 2008, investigators retrieved DNA evidence from an Orange County robbery, and that evidence matched Marquez’s DNA profile in the database (a “cold hit”). Police contacted Marquez, and with his consent they collected a second DNA sample, which matched the DNA evidence from the robbery.
Marquez moved to suppress the 2008 DNA evidence as “fruit of the poisonous tree.” Motion was denied.
The Court of Appeal, per Moore, J., affirmed.
First, the 2006 DNA collection was unlawful because the prosecution did not meet its burden to prove that Marquez had been validly arrested. The court cited the U.S. Supreme Court opinion in Maryland v. King, 569 US 435 (2013) in which it established…
… a new exception to the warrant requirement, largely relying on the existing search incident to arrest and booking exceptions: “When 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.”
***
In any event, it is a reasonable inference that at the time of his arrest in 2006, there were no reasonable grounds to believe that he was guilty of any “serious” or “jailable” crimes.
But what about the 2008 DNA swab? Admissible, says the court, as “it was sufficiently attenuated from the unlawful 2006 collection of Marquez’s DNA sample.”
The Supreme Court has identified three factors that are used to determine whether the illegality (the poisonous tree) has become sufficiently attenuated to permit the admission of the obtained evidence (the fruit)… First, courts consider the “‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search”; this factor only favors attenuation if “‘substantial time’” has elapsed… Second, courts consider “the presence of intervening circumstances.” … “Third . . . [courts] examine ‘the purpose and flagrancy of the official misconduct.’”
***
First, as to temporal proximity, a substantial period of time (about two years) had elapsed between the unlawful collection of Marquez’s DNA sample in 2006 and the lawful collection of DNA evidence in 2008. (Compare Brendlin, supra, 45 Cal.4th at p. 270 [temporal proximity of “only a few minutes”].) Second, as to intervening circumstances, between 2006 and 2008, Marquez had been arrested at least three times and had been ordered to submit to DNA testing on each occasion; moreover, at the time of Marquez’s 2008 DNA collection, he was on felony probation and consented to the cheek swab. Finally, as far as the flagrancy of the misconduct, while the Attorney General concedes that the authorities were not statutorily authorized to collect Marquez’s DNA in 2006, there is nothing to indicate that they acted with an improper motive, or that they somehow obtained the DNA sample in an inappropriate manner.
A Lawyer’s Letter to a Son
Back in 1972 my big brother, Bob, was having thoughts about becoming a lawyer like our dad, Art Bell.
Bob was, at the time, a teacher at an elementary school in northern California. So he wrote Dad a letter—a real letter, on paper, with an envelope and a stamp!—asking for Dad’s counsel.
And Dad, never one to do things (like represent a client) halfway, wrote a long letter in response.
Dad thought his modest epistle might be something other lawyers would find of value. So he paid to have it published in installments in the Los Angeles Daily Journal.
It was a huge hit. The demand for copies proved so great that Dad had the whole thing printed up and paid for it to be included as an insert in a later edition of the Journal.
It exposits a view of the law that is rare today: as an honorable profession, not just a way to get money or power.
We’ve just republished it as an ebook and in print. You can check it out by going HERE.