- LINN, 241 CA4 46, 193 CR3 342 (15):
Napa motorcycle cop observed a Ford Expedition with a driver and passenger, and the passenger holding a lit cigarette out an open window. Cop “just saw a quick flick of the fingers, which appeared to be he was flicking the ashes out the window.” He understood the passenger’s action violated the Vehicle Code.
He followed the Expedition until it parked. He stopped about three feet from the driver side door and got off his motorcycle as the defendant driver and the passenger were getting out of the Expedition.
Defendant testified that she parked her Ford Expedition and was getting out when she first saw Off, who was sitting on a motorcycle parked right next to her car. The first thing he said to her was that he “noticed my passenger flicking ashes out the window.” He asked for her driver’s license. She was smoking and drinking a can of soda, and Helfrich “asked me to put [the cigarette] out” and “put [the can] down.” He did not turn on his emergency lights or siren, use a blow horn, raise his voice or block her path.
Def. voluntarily offered her license to Off. He took it and held it in his hand as he called dispatch and ran a record check on Def. It was about this time that he notice an odor of alcohol on Def., which led to her arrest for DUI.
The trial court granted Def’s 1538.5 motion, but the appellate division reversed, concluding defendant’s encounter with the police officer who arrested her was consensual up to the time that he reasonably suspected she had been driving under the influence.
The Court of Appeal, per Stewart, J., reverses the appellate division and affirms the trial court.
[S]ubstantial evidence indicates that the officer’s actions reviewed in their totality constituted an assertion of his coercive authority before he had any reasonable suspicion to detain defendant. These actions included his stopping within three feet of defendant as she exited her vehicle to, as he told her, talk with her about her passenger’s flicking ashes out of the vehicle’s window as defendant drove, asking her for her driver’s license without explanation as he commanded her to put out her cigarette and put down her soda can, retaining her driver’s license as he conducted an unexplained record check, and questioning of the passenger for personal details that the officer recorded on a form. No objectively reasonable person would believe she was free to end this encounter under the totality of these circumstances, regardless of the officer’s polite demeanor and relatively low-key approach.
People Presented No Evidence That Officer Knew Terms and Limits of Probation Search Clause
- ROMEO, 240 CA4 931, 193 CR3 96 (15):
Offs conducted a warrantless search on a residence where two people, subject to a probation search clause, lived. Def. lived in the attached garage. Off. observed, in plain view on top of the desk, a clear Ziploc baggie containing 2.444 grams of methamphetamine. He also recovered a small amount of marijuana, wrapped in cellophane, from a cigarette box on top of the desk, as well as six hypodermic needles from a toolbox in the garage.
Def. and the two residents were Mirandized. Def. said he was staying in the garage and that the methamphetamine, marijuana and hypodermic needles found in the garage were his. Def showed signs of being UI, was taken to the station, and his blood tested positive for methamphetamine and opiates.
Def’s 1538.5 motion was denied. The Court of Appeal, per Streeter, J., reversed.
The court first dealt with a Harvey-Madden issue. The testifying Off. said he relied on his familiarity with the probationers, and a law enforcement computer database to establish the residents were indeed on probation. The court holds this is “slight” but enough to justify the Off’s belief in the probation clause.
But that does not end the inquiry. Whether the search itself is reasonable must be based on the circumstances known to the officer when the search is conducted.
However, at the 1538.5 hearing the People did not elicit any testimony from the Off. that he knew the terms or limits of the probation search clause itself.
We conclude that, on this record, the search … cannot be upheld. We are asked to sustain the warrantless search of a residence without any showing that the searching officers knew that the target of their search, the residence itself, fell within the scope of a probation search clause. A probation search carried out by police heedless of any limits in the operative search clause might turn out to be lawful or unlawful—depending on an after-the-fact check. (See Hoeninghaus, supra, 120 Cal.App.4th at p. 1196 [“If, as the People argue, police did not need to know that their authority to search defendant was limited to searching for drugs, then police could search him without any limitation and without any grounds to believe the search was reasonable; and if, after learning about the condition, they claimed that they were looking for drugs, the search could be upheld under the consent exception”].) This is the “search first, justify later” approach that the Supreme Court has consistently decried, while pointing out that it is particularly problematic where third-party non-probationers are involved.
But Hold the Phone…
Deputy Did Not Have Knowledge of Probation Search Condition, But His “Experience” Was Enough
- Wolfgang, 240 CA4 1268, 193 CR3 256 (15):
Investigating suspicious activity, Deputy knocked on door of a modular home. Def. answered and gave deputy his driver’s license. Deputy ran it through dispatch and was told Def. was on probation for brandishing a weapon. Deputy did not ask dispatch and was not told whether Def’s probation included a search condition. But deputy explained that, based on his training and experience as a 10-year veteran of law enforcement, when a person is on probation for a weapons violation, they have search conditions.
So he searched, and found a loaded .22 rifle. One sticky wicket: Def was not on probation for brandishing a weapon. It was for something else.
Understandably, Def. moved to suppress. Denied. The Court of Appeal, per Ramirez, PjJ., affirmed.
Black letter law is that an officer must know the terms of a search condition before searching (see ROMEO, above). But here the court allows the deputy’s “experience” to fill the gap.
There’s an “even if” analysis that says if this wasn’t a valid probation search, it can still be upheld. I don’t believe the court’s rationale can square with SANDERS, 31 C4 318 or ROBLES, 23 C4 739.