• BREWER, ___ CA5 ___, ___ CR3 ___ (17) #A151584
Def. was passenger in the back seat of a van, behind the driver. Offs approached and Def. “ducked down.” Off. then approached the front passenger seat and “located” marijuana in the possession of the person sitting there. Offs conducted a search of the vehicle (apparently after ordering the three occupants out). They found a Glock 10-millimeter loaded with a 15-round magazine underneath the rear of the driver’s seat.
Def. was charged with possession of a firearm with a prior violent conviction; having a large-capacity magazine; and carrying a loaded firearm.
At the prelim, Def. moved to suppress. Denied, the court holding that he lacked a legitimate expectation of privacy. After the prosecution filed an information, Def. moved under 995 to set it aside, renewing his argument that the gun evidence should be suppressed. Denied again.
Def. filed for a write of mandate, arguing that he was not challenging the search of the vehicle, but that he himself was unlawfully detained, and therefore the gun was the fruit of the poisonous tree.
The Court of Appeal, per Rivera, Acting P.J., issued a writ of mandate issue directing respondent Superior Court to vacate and set aside its ruling denying the motion to set aside the information, and to thereafter conduct further appropriate proceedings. The Court stated:
The parties have not cited any cases from California holding that a defendant may move to suppress evidence as the fruit of an unlawful detention even if the defendant lacked an expectation of privacy in the vehicle where the evidence was found. But there is an abundance of authority from other jurisdictions that supports defendant’s argument.
Well, yes, but all you need is BRENDLIN, 551 US 249 (07), which held that when a police officer detains a vehicle, both driver and passenger are seized and may challenge the constitutionality of the stop.
Done and done.
Defendants’ Rights in the Digital Age
This is a fast-evolving area of law. The United States Supreme Court has granted cert. in a case called United States v. Carpenter. The court will consider the scope of the Fourth Amendment’s protection of information contained in a cellular carrier’s records.
Two issues in that case: Whether digital information voluntarily exposed to others is protected by the Fourth Amendment; and whether government access to information collected by a private business in order to provide a service to a customer constitutes a search.
Another issue currently under consideration by the California Supreme Court is whether a criminal defendant has a constitutional right to obtain social media records from an online hosting service (Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203, review granted December 16, 2015, S230051).
The Court of Appeal has tackled the same issue in Facebook, Inc. v. Superior Court, 15 CA5 729, 223 CR3 660 (17).
Real Party in Interest, Touchstone, was on trial for attempted murder. The victim was active on the public portion of Facebook about the incident and his recovery. Touchstone sought access to the nonpublic content of the Facebook account, to be examined in camera, arguing there could be exculpatory evidence. He served Facebook with a subpoena. Facebook filed a motion to quash, citing the Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.)
Held, the SCA prohibits electronic communication service providers from knowingly divulging to any person or entity the contents of a nonpublic communication. While the statutory prohibition is subject to limited exceptions, none applied here.
Much more on this will be coming in the months and years ahead. Meanwhile, there is no truth to the rumor that YouTube, Twitter and Facebook are going to merge into one online site called YouTwitFace.
My Dad’s Book
Dad died in 1988, and I still miss him. Many of you never got to meet him, though there are still many who remember him and how helpful he was to young lawyers, or how entertaining a speaker when covering California search and seizure law.
What you may not know is his background. Raised in Hollywood, he was a star football and baseball player at Hollywood High School. He went on to play catcher for the UCLA baseball team, where his teammate was one Jackie Robinson.
In college he joined the Navy ROTC program and saw action throughout World War II. He was captain of three ships: the destroyers USS Dallas and USS Kinzer, and his first command and first love, the PC 477.
The PCs were 173-foot, steel-hulled submarine fighters. Uncle Sam had thousands of seamen on hundreds of PCs convoying and patrolling in WWII. They were introduced in the desperate days of early 1942, when the waters off America’s Atlantic coast were a graveyard of torpedoed ships. They performed essential, hazardous, and sometimes spectacular missions. Dad was part of all that.
In the late 1970s, Dad decided to write a memoir of his time aboard the PC 477 (the ship’s nickname was “Peter Charlie”). It was a true labor of love, and brought him back in contact with many of his shipmates. He collected letters and stories and photos, and wrote the book.
Dad self-published Peter Charlie in 1982. He paid a local printing outfit a princely sum to do a beautiful hardback edition, with dust jacket and all. I can’t recall how many he had printed up. Maybe 2,000. He sold them himself out of his law office and it found popularity among many ex-Navy men all over the country. When Dad died, I took over his practice and the writing of Bell’s Compendium. And I am proud to report that by 1999 or so, the entire print run had sold out. The book even returned a bit of a profit! But that appeared to be as far as this memoir would go.
And then the Kindle happened! And now, through the wonder of digital publishing, the book will never again be out of print.
My hope is that those who had parents or grandparents who served in WWII, and anyone interested in a first-hand report of what life was like aboard a naval vessel at that time, will be both edified and educated by this account. It is full of funny stories, historical data, some rare photos, and lots of interesting details.
You can read Peter Charlie on your Kindle or via the free Kindle app for your smartphone or tablet. All you have to do is go right here.