- Flores, 60 CA5 978, ___ CR3 ___ (21) #B305359:
At 10:00 p.m. at night, on a cul-de-sac known for illegal drug and gang activity, police see Flores on the street who, when he sees them, goes around and ducks behind a car. Flores looks up, ducks behind the car again, looks up again, and then ducks down again. An officer with a bright flashlight approaches to see what is going on. Flores remains crouched, moving his hands. The officer will later testify that he believed Flores was “pretending to tie his shoe.”
Despite the approaching light and the noise of the police radio, Flores stays ducked down for 20 seconds. The officer testifies he suspected Flores was “there loitering for the use or sales of narcotics.”
The police asked Flores if this was his car. Flores said yes. They asked for identification. Flores directed the police to his wallet, which was inside the car in the driver’s side door. Flores gave his consent for the police to get his wallet. In the wallet police found a bindle of what looked like methamphetamine. Police then searched Flores’s car and found a loaded and unlicensed gun inside a backpack on the front passenger seat
Flores’s suppression motion was denied. The Court of Appeal, in a 2-1 decision, affirmed.
The rule: The Fourth Amendment permits police to initiate a brief investigative stop when they have a particularized and objective basis for suspecting the person of criminal activity. It can’t be a mere hunch. Terry v. Ohio, 392 US 1 (68).
The trial court found Flores’s actions “odd.” The defense asked an obvious question: how do you know if a person is only pretending to tie his shoe? The majority opinion, per Wiley, J., answers:
[Y]ou would have valid suspicions if the person picked an unlikely moment for the task—in the dark, just after seeing police, and just after ducking once already—and if the person took an unusually long time at it. The trial court found Flores kept crouching for a suspiciously long time. Common sense takes context into account.
In dissent, Stratton, J., says:
The majority concludes that ducking, freezing, and not rising fast enough under these circumstances gave those officers reasonable suspicion to conduct a Terry stop. I cannot abide this holding as it threatens to allow police detention based on commonplace conduct subject to interpretation. The majority’s overbroad view of what sort of conduct can be deemed suggestive of wrongdoing ignores applicable law and the realities of twenty-first century America. In the case of a person wary of police interaction, the majority’s approach leaves virtually no room for that person’s conduct to be deemed “normal” and hence not suspicious.
Search of Parked Vehicle With Intoxicated Driver Valid
- Sims, 59 CA5 943, 273 CR3 792 (21) #D077024:
Shortly before 3:00 a.m., two police officers entered a parking lot in downtown San Diego. The officers were patrolling the area because the bars in downtown San Diego closed at 2:00 a.m., exiting patrons were often involved in criminal offenses, and the parking lot was known as a place where people went to drink and loiter after they left the bars. According to one of the officers, there were people congregating and partying in the parking lot, many of whom “scattered” when the officers arrived.
The officers approached a parked vehicle in the parking lot. Defendant was seated in the front passenger seat and appeared to be passed out. The keys to the vehicle were in the ignition. The officers engaged the defendant in conversation and detected the odor of alcohol on his breath. Bloodshot eyes, slurred his speech, etc. Based on these observations, the officers immediately believed the defendant was intoxicated and in violation of section 85.10 of the San Diego Municipal Code.
At the officers’ request, the defendant provided his name. One officer used his cell phone to search the defendant’s name on a criminal records database. The search yielded a record for a person named Tony Sims. The person was on probation and, as a condition of probation, he had executed a Fourth Amendment waiver. The database record included the person’s birthdate, height, and weight, as well as a photograph of the person that was approximately one square inch in size when displayed on the officer’s cell phone.
The officer asked the defendant to exit the vehicle for a vehicle search. However, the defendant was paralyzed from the waist down. Because the defendant was unable to exit the vehicle without assistance, the officer began to search the vehicle while the defendant remained seated in the front passenger seat. During the ensuing search, the officer recovered a loaded semi-automatic handgun from the rear passenger floorboard. The defendant was then handcuffed and removed from the vehicle, after which the officer continued to search the vehicle. The officer seized a second loaded semi-automatic handgun from underneath the front passenger seat and handgun ammunition from the rear driver side floorboard.
But then, oops: The police later determined the defendant was not the person whose record was produced during the criminal records database search and he had not executed a Fourth Amendment waiver.
The defendant moved to suppress. Denied. The Court of Appeal, per McConnell, P. J., affirmed. (Case was remanded for re-sentencing.)
There were two rationales supporting the search.
- Automobile Exception
Under the automobile exception, police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.
Here, police had probable cause to believe the car could contain evidence of violation of San Diego Municipal Code section 85.10: “No person who is under the influence of intoxicating liquor or narcotic drugs shall be in or about any motor vehicle, while such vehicle is in or upon any street or other public place.”
What evidence? Perhaps an open container. The defendant argued that the officers lacked probable cause to search his vehicle because his state of intoxication, standing alone, did not give rise to a reasonable inference that he consumed alcohol in the vehicle (as opposed to a bar), or that unsealed containers of alcohol would be found in the vehicle.
Assuming without deciding that “something more” than the defendant’s state of intoxication was necessary for the officers to have probable cause for the search, there was “something more” here. The encounter between the officers and the defendant occurred shortly before 3:00 a.m., after nearby bars had closed.
- Search Incident to Arrest
Under Gant, 556 US 332 (09), police may conduct a warrantless search of the passenger compartment of a vehicle and any containers therein, as an incident to a lawful arrest of a recent occupant of the vehicle, so long as “the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”
At the time the officers began to search the vehicle—and discovered the first loaded firearm—the defendant was unsecured and seated in the front passenger seat of the vehicle. The defendant was plainly “within reaching distance of the passenger compartment” while he was unrestrained and seated inside the passenger compartment.