LARA, ___ F3 ___ (9 Cir. 16) #14-50120
Lara was subject to a probation search condition that required him to submit his “person and property, including any residence, premises, container or vehicle” to search and seizure “without a warrant, probable cause, or reasonable suspicion.”
Lara’s probation officers went to his residence to conduct a search. They had Lara sit on the couch. One of the Offs saw Lara’s cell phone sitting on a table and decided to give it a look see. He did not ask for permission. The other Off later testified that it is the department’s policy to search a cell phone when officers visit a probationer, even if the probationer objects.
Off. reviewed the most recently sent text messages on Lara’s cell phone and discovered messages containing three photographs of a semiautomatic handgun lying on a bed. The pictures had been sent to “Al,” who responded, asking if the gun was “clean.” Lara replied, “yup.” Al followed up by asking, “What is the lowest you will take for it?” and “How much?”
Oops.
Off. handcuffed Lara, and he and the other Off. searched Lara’s house and car for the gun. They did not find it, but they did find a folding knife, the possession of which violated the terms of Lara’s probation. They arrested Lara for the knife brought the cell phone to the Orange County Regional Computer Forensics Lab.
Lab personnel found GPS data embedded in the photographs of the gun and thereby determined the address where they were taken.
CSI!
Investigation revealed the location to be the home of Lara’s mother.
Lara was charged with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the gun and ammunition on the ground that it had been found as a result of illegal searches of his cell phone by Officer Ortiz and the lab.
Motion denied. The 9th Circuit Court of Appeals reversed.
First, the court held that probationers accepting a 4th Amendment waiver do not thereby waive all their rights. The search itself must meet the standard of reasonableness. That requires a balancing of interests.
The probationer’s privacy interest in his cell phone data won out.
“We recognize that his privacy interest was somewhat diminished in light of Lara’s status as a probationer. But it was not diminished or waived because he accepted as a condition of his probation a clear and unequivocal search provision authorizing cell phone searches (he did not) or because he subscribed to cell phone service using a different first name (he did).”
Warrantless Blood Draw of Unconscious DUI Suspect Violates 4th
*Arredondo, 245 CA4 186, 199 CR3 563 (16): #H040980 *[NOTE: Review Gr. Cal. Sup. Ct.]
Def drove his Jeep Cherokee away from a party, where the booze was flowing, with six passengers. One of the passengers testified that after visiting a liquor store, Def began to “drive crazy.” He was, and flipped the Jeep over. Three of the passengers scurried into the night.
Two of the remaining passengers were hurt, one with a brain injury. Def was unconscious, and was taken to a medical center. After an hour and a half of treatment, during which Def was unconscious, the Off had a blood draw taken. At no time did he seek a telephonic search warrant.
Def. moved to suppress the blood evidence. Motion was denied on the grounds that he had given his consent. How could he give his consent when he was out cold? Why, the California Implied Consent Law, Vehicle Code section 23612 (§ 23612), subdivisions (a)(1)(A) and (a)(5).
The Court of Appeal, per Rushing, P.J., but only on the grounds of the Good Faith Exception. What the court says about warrantless blood draws from the unconscious is another matter.
Can’t do it. Not even under the implied consent statute.
First of all, you’ve got to love a DUI opinion in 2016 citing 1803’s marquee decision, Marbury v. Madison 5 U.S. 137, and that haymaker from 1824, Gibbons v. Ogden, 22 U.S. 1!
If imputed consent is to be held sufficient to sustain a warrantless search, the holding will have to come from a court other than this one. We fear the Fourth Amendment could be left in tatters by a rule empowering the state to predicate a search on conduct that does not in fact constitute a manifestation of consent but is merely “deemed” to do so by legislative fiat. It is far from implausible, for example, that a legislative body—state or federal—might decree, in the name of public safety or national security, that the use of the mails, or the phone lines, or the internet—all of which rely to a greater or lesser extent on publicly owned property or facilities or publicly provided services—constitutes consent to search the contents of all communications thus conducted. Consent to search homes might be “deemed” to be given by anyone taking advantage of various publicly provided or subsidized privileges—like use of public utilities, libraries, or schools. Consent to search the person might be “deemed” to be given by use of a public sidewalk or occupancy of a public place.
As mentioned, the court went on to hold thatt the blood evidence was admissible under the Good Faith exception of U.S. v. Leon, 468 US 897 (84). That’s because this is the first decision to hold that the implied consent law is not a sufficient ground for a warrantless blood draw.
And here’s the kicker (not from the court, but from the Poop Sheet’s editorial board): After this decision, law enforcement cannot claim “good faith” under similar circumstances. Why not? Because of the famous footnote 20 in Leon:
The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits. [468 US 897, ftn. 20].
Once an issue is settled by the appellate courts, it is the law that a reasonably well-trained officer should know about.