• Arebalos-Cabrera, ___ CA5 ___, ___ CR3 ___ (18) #D074047
Defendant was part of a group of individuals being surveilled by law enforcement in a multiagency regional narcotics suppression program. After observing what they believed to be suspicious behavior indicative of narcotics trafficking, police officers contacted the California Highway Patrol and identified Def’s tractor-trailer as possibly transporting narcotics.
A CHP officer followed the trailer and made a traffic stop for speeding and weaving. A 15 – 20 minute detention ensued during which Def was questioned, had papers examined, and was even given a field sobriety test—which he passed. He was then told he was “free to leave.” But after a few steps the officer asked Def for consent to search the trailer, and had Def sign a consent form. A dope-sniffing dog hit on a compartment that had a big load of heroin.
Def’s 1538.5 motion was denied, and the Court of Appeal, per Guerrero, J., affirmed.
The issue was whether Def’s detention was over at the time of giving his consent. Def claimed that as he walked away after being told he was free to leave, the officer said, “No. Hold on a second. I want you to sign a consent form.” That, Def argued, was a command, not a request, and that a reasonable person in that circumstance would not feel free to leave.
The court, however, rejects Def’s rendition of the command because the trial court did not find it credible. Oddly, the exact words the officer used are not quoted in this decision. They are characterized as a request (i.e., the officer “asked”). Seems a pretty doggone important piece is missing here.
Admitting there was no California case on point, the court looks to out-of-state and federal citations. It finds one case, Maynard, (D.C. Cir. 2010) 615 F.3d 544, “instructive.” There was a traffic stop and detention, then the driver told he was free to leave. Then the officer said, “Do you mind if I ask you a few additional questions?” This was not a command a stop. Not a demand, as in “I want you to sign.” It was a query, a request.
When it comes to the “reasonable person” test, this difference is quite significant. Would be nice to know what was actually said because it is actually crucial.
Takeaway: The reasonable person test is used when figuring out if there’s a detention or consensual encounter. If there’s a “show of authority” and a reasonable belief you’re not free to leave, it’s a detention. “When the stop is over and its purpose served . . . , mere questioning by officers, without some indicated restraint, does not amount either to custody for Miranda purposes or a seizure under the Fourth Amendment.” But if there is a “command” (the court tacitly admits) the calculus would be different.
Interestingly, no one cites Columbo. Remember, “Oh, just one more thing, sir…”?
People v. Sacrite Ordered Depublished
@Sacrite, ___ CA5 ___, 233 CR3 763 (18).
Our @ symbol means a case has been ordered depublished by the Cal. Supreme Court.
In Sacrite, defendant was riding his bike the wrong way in traffic as he was enjoying a beer. Officers stopped him and though he might be UI. Wanting a closer look, one officer noticed “bulges” in the pockets of Def’s short pants. Ahem. One of the bulges was in the shape of a cell phone. Pat down. Officer reached in Def’s pocket because (he testified) he could not “exclude the possibility that what defendant had in his pockets were concealed weapons.” Def. actually had Meth.
The Court of Appeal, 2-1, affirmed the denial of Def’s suppression motion. But Mihara, J., wrote a strong dissent, asserting, “When an officer cannot articulate any fact that supports something more than a mere possibility that a citizen is armed, the officer is not entitled to conduct a pat search.” It’s worth quoting Justice Mihara’s analysis for future reference:
[Officer] Prim’s testimony at the suppression hearing failed to identify any “specific and articulable facts” supporting a reasonable inference that defendant was armed. My colleagues conclude that Prim’s observation of the “bulge” in defendant’s pocket supported an inference that defendant was armed. They rely on the United States Supreme Court’s decision in Pennsylvania v. Mimms (1977) 434 U.S. 106 (Mimms). In Mimms, the defendant was stopped for driving a vehicle with an expired license plate. When the defendant stepped out of the vehicle at the officer’s request, the officer noticed a large bulge under the defendant’s jacket. Fearing that the bulge was a weapon, the officer frisked the defendant and discovered a firearm in the defendant’s waistband. (Mimms, at p. 107.) The United States Supreme Court found: “[T]here is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of ‘reasonable caution’ would likely have conducted the ‘pat-down.’ ” (Mimms, at p. 112.)
Unlike the bulge under Mimms’s jacket, which the officer feared was a weapon, Prim did not claim to fear that the cell-phone-shaped bulge in defendant’s pocket was a weapon. Nor did he identify any specific fact upon which he could have based a reasonable suspicion that the bulge was a weapon. Instead, Prim’s testimony was that he was “unaware if [defendant] had a weapon or not” and could not “exclude the possibility” that the bulge was a weapon. Prim did not even claim that he had a “hunch” that the bulge was weapon.
Recent McNeely Cases Rundown
My thanks to Mr. Al Menaster, guru of the Appellate branch of the L.A. Public Defender’s office, for these squibs on DUI case law after McNeely, 133 S.Ct. 1552 (13) [holding that “where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”]
- A police officer’s implied consent advisement does not make a blood draw forcible. This is even if the advisement is incorrect. People v. Harris (2015) 234 Cal.App.4th 671
- The defendant here was involved in an accident and was taken to a hospital, where his blood was taken without a warrant. There is no exception to McNeely’s requirement of a search warrant to forcibly take blood merely because there was an accident. People v. Meza (2018) 23 Cal.App.5th 604
- The officer misadvised the defendant by failing to tell him that he could take a blood test or a breath test: “But this violation did not prejudice appellant and is of no constitutional significance.” Even if the 4th Amendment did require the officer to comply with the implied consent law, “the blood test result would have been admissible under the inevitable discovery doctrine.” If the defendant had taken the breath test, the officer would have been entitled to insist on a blood test to show that the defendant was under the combined influence of alcohol and drugs. People v. Vannesse (2018) 23 Cal.App.5th 440
- The defendant here, arrested for DUI, was advised of the implied consent law, but he was not advised that he could refuse and of the consequences of such a refusal. Vehicle Code section 23612 requires an advisement of the consequences of refusal. A person does not have to be advised that he or she can refuse. The defendant “freely consented” to the blood draw. People v. Balov (2018) 23 Cal.App.5th 696
See also:
- People v. Mason (2017) 8 Cal.App.5th Supp. 11
- People v. Ling (2017) 15 Cal.App.5th Supp. 1
- People v. Pickard (2017) 15 Cal.App.5th Supp. 12