- Chamagua, 33 CA5 925, 245 CR 523 (19) #B290057:
Sheriff’s Deputy Gorski testified he and his partner were patrolling in a marked patrol car one night when they spotted Def walking along, but then immediately changed direction and quickly walked into an apartment complex driveway. Def. put something in his pocket. Gorski pulled the patrol car “just slightly” into the driveway, alongside Def. The officers got out and Gorski asked Def, “Hey, how are you doing? What’s your name? Do you got [sic] anything illegal on you?”
Def. said, “I have a pipe on me.” Gorski searched Def. and found a pipe with traces of crystal methamphetamine. Gorski asked, “Hey, you know, anything else illegal that you have on you?” Def. said, “Yeah, I have a bunch of meth on me.” Gorski searched Chamagua’s pocket and found a ping-pong-sized ball of crystal meth inside a transparent green container
Def. then admitted he was going to a party to sell the meth to support his own habit. He was arrested, and his motion to suppress was denied.
The Court of Appeal, per Wiley, J., affirmed.
This issue in cases like this is whether a reasonable person would feel they were being detained by a “show of force” by officers.
Def’s rendition of the events was found not to be credible by the trial court. Thus, for this appeal, the court accepted only Gorski’s testimony.
The deputies did not use or threaten physical force. They did not command Chamagua to do anything. They simply asked questions.
Asking questions, including incriminating questions, does not turn an encounter into a detention. (See Florida v. Bostick, supra, 501 U.S. at p. 439.)
People targeted for police questioning rightly might believe themselves the object of official scrutiny. Such directed scrutiny, however, is not a detention. (People v. Franklin (1987) 192 Cal.App.3d 935, 940.)
Chamagua argues from People v. Lopez that Gorski’s questions were sufficiently accusatory to turn the encounter into a detention. (People v. Lopez (1989) 212 Cal.App.3d 289, 292–293.) But that opinion held an encounter was consensual and was not a detention.
Chamagua cites People v. Ramirez to argue police blocked him from leaving the area. (People v. Ramirez (2006) 140 Cal.App.4th 849, 852.) Ramirez was different. An officer ordered Ramirez, who was walking, to “hold on” and to put his hands on his head. (Ibid.) When officers order you to halt, to stand still, and to assume a position typically associated with arrest, they show police authority. By contrast, this case has no police orders and no shows of authority. Gorski simply asked Chamagua questions.
Chamagua stresses the encounter was at night. Sundown does not remove the power of free consent.
Warrantless, Forcible Blood Draw Valid Under Probation Search Conditions
- Cruz, ___ CA5 ___, ___ CR3 ___ (19) #F074667:
Def. was arrested for DUI. He was on felony probation from a previous DUI. Included in the conditions of probation were the following:
- Submit your person, vehicle, place of residence or any other belongings to search and seizure, without a warrant, any time day or night, by any Probation Officer and/or Peace Officer, with or without probable cause.
- If arrested for driving under the influence of alcohol in violation of Section 23152 or 23153 of the Vehicle Code, shall not refuse to submit to a chemical test of your blood, breath or urine.
Def. refused to take a test, so was transported to a hospital for a forcible blood draw, showing a 0.157 BAC.
Prior to his preliminary hearing, Def. moved to suppress all evidence obtained as a result of the blood draw, on the ground the warrantless invasion of his bodily integrity, undertaken without his consent, violated the Fourth Amendment. The magistrate ruled the terms and conditions of defendant’s felony probation justified the nonconsensual blood draw, and so denied the motion.
Following the filing of the information, defendant renewed his motion. Denied. A No Contest plea was entered, and this appeal followed.
The Court of Appeal, per Detjen, J., affirmed.
The California Supreme Court has not yet determined whether a general probation search condition authorizes a warrantless, nonconsensual blood draw … Here, however, defendant was not merely subject to California’s implied consent law or a general probation search condition requiring that he submit his person, vehicle, place of residence, and belongings to search and seizure. Rather, he expressly agreed that if he was arrested for drunk driving, he would not refuse to submit to a chemical test of his blood. Because of this, his challenge to the validity of the search and seizure fails.
The court distinguished this case from those arguing exigent circumstances or incident to arrest to justify the search.
Defendant points to McNeely, Birchfield, and Schmitz….As we previously observed, McNeely addressed the exigent circumstances exception to the warrant requirement. (McNeely, supra, 569 U.S. at p. 145.) Schmitz was concerned with a warrantless parole search, and noted the “clear distinction between probation and parole with regard to consent.” (Schmitz, supra, 55 Cal.4th at p. 920.) Birchfield addressed searches incident to arrest. (Birchfield, supra, 579 U.S. at p. ___ [136 S.Ct. at p. 2184].)
Keep an Eye on:
- In re J.G., 33 CA5 1084, 245 CR3 587 (19) #B287487:
The juvenile court has broad discretion when it comes to imposing probation search conditions. But how far can they extend to electronic devices? That issue is currently pending in the California Supreme Court. See, e.g., In re Ricardo P. (2015) #S23092 (requiring disclosure of minor’s passwords to electronic devices was unconstitutionally overbroad because it was not narrowly tailored to limit impact on minor’s privacy rights).
In J.G., the trial court granted probation on a number of conditions, including that J.G. shall, “Submit any electronic device, used to store or transmit digital information, that you own, possess or control, to a search of any source of electronic data identified below, at any time, with or without probable cause, by a peace officer, and provide the peace officer with any passwords necessary to access the data source specified.”
Sources of electronic data identified in the probation condition were: text messages, voicemail messages, call logs, photographs, email accounts, social media accounts and internet browsing history.
Does that sound overbroad? No, says the court. “This kid is in trouble. He needs guidance. He does not need to access racial hatred which is so readily available on the internet.”
[see also People v. Bryant (2017) 10 Cal.App.5th 396, review granted June 28, 2017; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016.]