2009 LEGAL UPDATE
SEARCH & SEIZUREEdited by: Ray Hill, Santa Rosa Junior College
rhill@santarosa.eduThis syllabus contains summaries of case law decisions from the U.S. Supreme Court, California Supreme Court, California District Court of Appeals, and Ninth U.S. Circuit Court of Appeal. It is prepared for educational use only. The information contained herein is subject to department policy and the interpretation of your District Attorney's Office prior to its use.
ARREST
RETRIEVING MESSAGES FROM AN ARRESTEE’S CELL PHONE 90 MINUTES AFTER ARREST WAS LAWFUL (Peo. v. Diaz, 2DCA, 7/08 - California Supreme Court Review Pending).
The Ventura County Sheriff’s Department arrested the defendant for transporting a controlled substance. Deputies noted that the defendant was carrying a cell phone in his pocket at the time of arrest, however it was not seized at the scene. After being transported to the Sheriff’s station one hour later, the cell phone was seized. Thirty minutes after that, a deputy accessed the phone’s text messages, retrieved an incriminating message, and during questioning confronted the defendant with this evidence. Defendant sought suppression of the text messages and his statements on grounds the seizure of the cell phone was not contemporaneous to his arrest and the viewing of the messages was an unlawful search.
1) DCA ruled the seizure of the cell phone and the accessing of the messages was lawful. A lawful search incident to arrest requires no additional justification. At the time the defendant was taken into custody, the phone was “immediately associated with the person of the arrestee”. Ninety minutes after arrest was not an excessive delay to retrieve and examine the phone. Though a cell phone has “the capacity to store tremendous quantities of personal information”, there is a reduced expectation of privacy when a person is arrested. This also includes property such as wallets, purses, address books, and pagers that an arrestee actually carries on one’s person.
DELAYED SEARCH INCIDENT TO ARREST WAS NOT PERMITTED WHEN THE SUSPECT HAD BEEN REMOVED FROM THE DOORWAY AND PLACED IN A PATROL CAR (Peo. v. Leal, 6DCA, 2/08 - California Supreme Court Pending).
Salinas Police officers went to the defendant’s residence to serve two misdemeanor arrest warrants. The defendant answered the front door and stood in the threshold. He was arrested, handcuffed, and led to a patrol car parked 30-38 feet away. Other officers entered the home to make sure no one else was there. Two to three minutes later, After finding no one inside the home, an officer searched the area immediately adjacent to where the defendant had been standing when taken into custody. A small rocking recliner was located next to the front door. The officer lifted a sweatshirt on the chair and found a loaded semiautomatic handgun with obliterated serial numbers.
1) 6DCA ruled the search was unlawful and suppressed the gun. Though the area had been in the defendant’s immediate control at the time he was arrested, it was no longer within his control once he was removed from the area, confined in handcuffs, and secured in the back of a patrol car some distance from the doorway. The defendant could no longer reach into the area to grab a weapon or destroy evidentiary items.
2) The court went to some length to distinguish this residential arrest search from a search incident to arrest in an automobile. When a suspect is arrested and removed from a vehicle or arrested when “immediately associated” with a vehicle, then secured in a police unit, A brightline search of the passenger compartment can still be conducted (Thornton v. U.S., U.S., 2004).
COMMUNITY CARETAKING
“COMMUNITY CARETAKING” DOCTRINE DOESN’T PERMIT A WARRANTLESS ENTRY INTO A TRAILER TO SEIZE A RIFLE BELONGING TO A 5150 DETAINEE (Peo. v. Sweig, 3DCA, 11/08).
Shasta County Sheriff’s deputies responded to a “hang-up 9-1-1” call coming from the defendant’s trailer. Deputies knew the defendant had a history of mental instability. Upon arrival, the defendant was standing on the porch and holding a rifle. He was ordered to drop the gun, he went back inside the trailer for a short time, then exited without the rifle. Due to the defendant’s demeanor and mental state (“People were harassing him, banging on the side of his trailer, shooting him with laser lights which emitted radiation, he had already fired his rifle at one person who allegedly was shining a flashlight on him”), he was “5150d” and placed in a patrol unit. Deputies convinced the defendant to accompany them back into the trailer to seize the rifle and any other firearms due to “community caretaking”. An illegal assault weapon was found under the defendant’s bed.
1) DCA ruled the “community caretaking” exception did not apply and the gun was suppressed. The defendant had been seated in a patrol car, outside the trailer, and no longer had access to the rifle. No immediate entry into the residence was necessary. Section 8102(a) W&I states that when a detention is made for 5150 W&I, officers may seize any firearms or deadly weapons in a person’s possession or under a person’s control. However, this section doesn’t bypass the Fourth Amendment and permit a warrantless entry into a home.
CONSENT
REFUSING TO CONSENT TO A SEARCH BY ONE TENANT CANNOT LATER BE CIRCUMVENTED BY CONSENT TO SEARCH BY ANOTHER CO-TENANT (U.S. v. Murphy, 9USCA, 3/08).
Jackson County, Oregon narcotics task force officers conducted a knock and talk at a storage unit where precursors used to manufacture methamphetamine had just been delivered. The defendant met officers at the door holding a 10” metal pipe. When the defendant initially refused to drop the pipe, an officer repositioned himself in the doorway for safety purposes, and was able to see a working meth lab inside. The defendant was arrested and asked for consent to search the storage unit. He refused and was transported to jail. Officers performed a protective sweep of the unit for more suspects (ruled to be lawful), then an officer left the scene to prepare a search warrant affidavit. Two hours later, the renter of record for the storage unit arrived and was arrested on outstanding warrants. He gave his written consent to search the unit. Officers conducted a search based upon this consent (before the issuance of a search warrant) and recovered drug manufacturing evidence.
1) 9USCA ruled the search was unlawful. In a “mutual use” setting, one consenting tenant cannot permit a search over the objections of another dissenting tenant. Though not paying the rent for the unit, the defendant had “joint access and control for most purposes”. He kept his personal belongings inside, had a key to the unit, and was permitted to invite guests inside. The fact that the defendant had been removed from the scene when the second tenant (who was then on scene) gave consent, did not eliminate his prior objection to the search. ”Once a cotenant has registered his objection, his refusal to grant consent remains effective barring some manifestation that he has changed his position and no longer objects”.
SPOUSE CAN CONSENT TO A SEARCH OF A HOME AFTER AN “OBJECTING SPOUSE” IS ARRESTED AND REMOVED FROM THE HOME (U.S v. Henderson, 7USCA, 9/08).
A wife called the Chicago Police Department and reported she had been the victim of domestic violence. When officers arrived, they met the victim on her front lawn. She told officers that her husband (defendant) had choked her and thrown her out of the house, she had “red marks” around her neck, and she wanted her husband arrested, Upon entering the home, the defendant told officers to “Get the fuck out of my house”. After the defendant was arrested and removed from the home, officers obtained the wife’s consent to search the premises. Crack cocaine and firearms were found in the attic.
1) 7USCA ruled the wife’s consent was lawful. Even though the defendant had expressed his objection to police entry, his wife had sole authority over the home once he was lawfully removed from the premises. “Here, it is undisputed that Henderson objected to the presence of the police in his home. Once he was validly arrested for domestic battery and taken to jail however his objection lost it’s force and Patricia was free to authorize a search of the home. This she readily did”.
2) An opposite ruling was rendered in U.S. v. Murphy, 9USCA. 2/08. 7USCA criticized the ruling in Murphy that “a one-time objection by one co-tenant is sufficient to permanently disable the other from ever validly consenting to a search of their shared premises”. Ultimately, the U.S. Supreme Court will need to further clarify this “objection in presence” portion of Georgia v. Randolph, U.S., 2006.
REQUEST FOR A “QUICK CHECK” MEANS JUST THAT (Peo. v. Cantor, DCA, 2007).
After a traffic stop, officers asked if it was “OK to do a quick check of the vehicle?” When consent was granted, officers searched the passenger area, trunk, engine compartment, then searched the passenger area and trunk a second time. Officers unscrewed a closed, wooden box found in the trunk and methamphetamine for sale was found. The search process lasted 15 minutes.
1) DCA ruled the officers themselves limited the “time scope” of the search. Their actions involving multiple search locations, repeat searches, and dismantling property over a 15 minute period. The search went beyond the request for a “quick check”. The methamphetamine found in the box was suppressed.
CONSTITUTIONAL LAW
NO FOURTH AMENDMENT EXCLUSION REMEDY WHEN POLICE MAKE A PROBABLE CAUSE ARREST, ALBEIT PROHIBITED BY STATE LAW (Virginia v. Moore, U.S, 4/08).
Portsmouth, Virginia Police arrested the defendant for driving with a suspended license. Under Virginia law, the defendant was required to be cited and released in the field. An arrest search of his person revealed crack cocaine.
1) U.S. ruled there is no remedy for exclusion of evidence when an arrest is made upon probable cause, although the arrest may be unlawful under state law. “A custodial arrest, even one effected in violation of state arrest procedures, does not violate the Fourth Amendment”. “Incorporating state arrest rules into the Constitution would make Fourth Amendment protections complex and variable from place to place and time to time”. The Fourth Amendment should reflect bright line rules. There is an “adequate basis for treating all custodial arrests alike for purposes of search justification”.
2) Note: If a state choses to protect privacy beyond the level of the Fourth Amendment, then state civil sanctions can apply to the making of such an arrest. The evidence comes in, but you can get sued!
DETENTION
A TRAFFIC DETENTION IS NOT JUSTIFIED MERELY TO CHECK ON THE AUTHENTICITY OF A TEMPORARY OPERATING PERMIT (Peo. v. Hernandez, Cal., 12/08).
A Sacramento Sheriffs deputy observed that the defendant’s truck was missing both license plates, but bore a current Temporary Operating Permit in the rear window. He stopped the truck in order to investigate the authenticity of the permit because in the deputy’s experience “such permits are often forged” or “have been issued for a different vehicle”. The stop led to observations of DUI and the defendant was eventually charged with driving under the influence of meth, resisting arrest, and battery on peace officer after he refused to exit the truck.
1) Cal. ruled there was no legal basis to detain. An officer who sees a vehicle displaying a current temporary operating permit in lieu of both license plates may not stop the vehicle, absent additional facts or information that the permit itself is invalid. “Persons in automobiles on public roadways may not have their travel and privacy interfered with at the unbridled discretion of police officers”.
2) Note: Cal. has upheld a detention where the front license plate was missing, the tabs on the rear plate were expired, and a current temporary operating permit was displayed in the car window. Given the DMV requirement that all plates be surrendered when applying for the replacement of a missing plate and the conflicting evidence of registration, the officer had no other ready means to verify the vehicle’s compliance with the law (Peo. v. Saunders, Cal., 2006).
NO REAR PLATE OR OTHER EVIDENCE OF REGISTRATION VISIBLE FROM THE REAR OF A VEHICLE JUSTIFIES A TRAFFIC STOP (In re: Raymond C., Cal. 12/08).
At 0100 hours, a Fullerton Police officer observed a vehicle with no rear plate. There was no Temporary Operating Permit displayed in the rear window. A traffic stop was made. The driver showed symptoms of DUI and was arrested. In fact, a folded temporary registration sticker was attached to the right front corner of the windshield. The officer could not see the sticker from his position behind the vehicle.
1) Cal. ruled the officer had reasonable suspicion to stop the car in order to investigate the registration status (no plate and no visible evidence of registration). The court took judicial notice of DMV procedures stating that the preferred location of “New Dealer Notice Temporary Identification” is in the lower rear window (“officers typically approach vehicles from the rear”). There was no license plate frame, dealer’s logo, or anything else attached in the license plate area. There are reasons a person may operate a vehicle without license plates (to avoid detection during or after a crime, to avoid red light cameras, or automated toll booths). At roadway speeds, it would be impractical and unsafe to always require an officer to maneuver into a position to view the front windshield area in order to determine if there is a temporary operating permit affixed there. After making the traffic stop and observing symptoms of intoxication, the officer was entitled to turn his investigation in a new direction.
SPOTLIGHTING PLUS “AGGRESSIVE POLICE APPROACH” IS A DETENTION (Peo. v. Garry, 1DCA, 12/07).
At 2330 hours, a Vallejo officer observed the defendant standing on a street corner in a high crime area. From 35 feet away, the officer “spotlighted” the defendant. The officer then quickly pulled the patrol car to the curb, exited, and began walking “briskly” towards the defendant. The defendant volunteered that he lived at a nearby
residence and pointed towards the house. The officer stated: “OK, I just want to confirm that”. Further conversation revealed the defendant was on parole. A parole search revealed 13 individually wrapped pieces of rock cocaine.
1) 1DCA suppressed the evidence ruling the totality of spotlighting, abrupt parking, “brisk approach”, and initial language used by the officer constituted a detention, not a contact. There was a show of police authority sufficient to make the defendant objectively believe that he could not end the contact and leave.
2) This decision is not based upon spotlighting standing alone (shining a flashlight would fall into the same category). The court ruled the “aggressive approach” and language used by the officer was such that that a reasonable person in the defendant’s position would not feel free to depart the scene. It is important to document your manner of low key approach and initial conversation used when “contacting” a person (i.e., Good Evening! How are things going? Do you mind if I talk to you for a couple of minutes?).
3) Even though the defendant was on parole and subject to search, the officer had no knowledge of this fact at the time of his detention. There is no “good faith” behind parole (or probation) searches when the parole status or search condition is not known before-the-fact.
ASKING QUESTIONS ABOUT AN UNRELATED CRIME DOESN’T UNDULY PROLONG A TRAFFIC DETENTION (U.S. v. Turvin, 9USCA, 4/07).
An Alaska State Trooper stopped the defendant’s pickup truck for speeding and loud muffler violations. The trooper discussed the traffic violations for 3-4 minutes, made a records / warrants check, then began writing a citation. Within 10 minutes, a backup trooper arrived at the scene. The backup trooper recalled that the defendant was arrested earlier in the year for operating a “rolling methamphetamine lab” out of the same truck. The first trooper ceased writing the citation, turned on his tape recorder, approached the defendant, and began a conversation about the prior arrest. The trooper sought and obtained consent to search the truck. He found a sawed-off shotgun and packages of methamphetamine. The consent was obtained within 14 minutes of the initial stop.
1) 9USCA ruled that during a traffic detention, it is permissible for an officer to ask questions about an unrelated crime without additional reasonable suspicion. The fact the trooper paused his citation writing process to ask a few questions unrelated to the stop did not unduly prolong the detention. “An officer who asks questions while physically writing a ticket will likely be slowed down just as an officer who briefly pauses to do so”. The questions were prompted by “Powell’s (the other trooper) arrival and information about a rolling methamphetamine laboratory involving the same vehicle and person”. The officers did not extend the traffic stop appreciably - “Fourteen minutes is not unreasonably long for a traffic stop”. “For the police to be vigilant about crime is, at least broadly speaking, a good thing. And at a traffic stop, the police can occasionally pause for a moment to take a breath, to think about what they have seen or heard, and to ask a question or so”. The detention and consent search were lawful.
ORDERING OUT AND SUPERVISING A PASSENGER PENDING AN IMPOUND / INVENTORY SEARCH WAS PROPER (Peo. v. Hoyos, Cal., 7/08).
Defendant was a passenger in vehicle stopped by an El Cajon Police officer for a license plate light out violation. The driver (codefendant) did not have a driver’s license. The vehicle occupants were directed out of the car and supervised by another officer while an impound / inventory search was started. Within a minute or two, a loaded gun and several loaded magazines were found. Eventually, 28 pounds of marijuana and was found in the trunk. The evidence eventually linked the defendants to a drug “rip off” murder.
1) Cal. ruled the officer was justified in impounding the car and ordering passenger from the was a lawful. It was reasonable to supervise the defendant because allowing him to walk around in the vicinity of the officers while a vehicle search was being conducted would create an officer safety issue. Defendant was supervised for no more than two minutes when evidence was recovered leading to probable cause to arrest.
RESTRAINED DETENTION NOT PERMISSIBLE FOR A MARIJUANA SMOKING INVESTIGATION (Peo. v. Antonio B., 2DCA, 10/08).
Defendant was detained by three Los Angeles Police officers because he was walking with another person who was smoking a marijuana joint (“Marijuana tends to be a communal drug” “When one person is smoking it, his companions usually join in smoking it”). Defendant was handcuffed (The officer later testified: “We always handcuff people if we’re going to detain them for further investigation”. “It’s our procedure that if anyone is going to be detained for a period of time, were going to handcuff them”). Defendant consented to a search of his person resulting in the discovery four baggies of cocaine in his coat pocket and six baggies of marijuana inside a sock concealed in his groin area .
1) DCA ruled the initial detention was reasonable, however the restrained detention was not justified and turned the detention into a unlawful “defacto” arrest. Handcuffing during a detention for a “cite only” offense was not reasonably related to a legitimate officer safety concern (the officer outnumbered the detainees 3 to 2 and the defendant’s companion was under arrest and in handcuffs). Handcuffing as a matter of routine department policy doesn’t pass Fourth Amendment scrutiny. Lawful consent cannot come from an unlawful Fourth Amendment event, so the evidence was suppressed.
HANDCUFFING DURING A TRAFFIC STOP IS A DEFACTO ARREST (Peo. v. Stier, 4DCA, 11/08).
DEA agents suspected a vehicle was involved in narcotics activity and asked San Diego Police to make a traffic stop for investigation. Officers noticed seatbelt and equipment violations and initiated a stop in a “high gang, high narcotics” area. A passenger exited the car and was detained. She admitted to carrying drugs which were seized from her person. Defendant, also a passenger, was asked to step from the vehicle. The defendant was 6’6” tall and “very easygoing, very mellow”. Nonetheless, the officer was “uncomfortable with the height differential”. The officer knew that drug dealers and users sometimes carry weapons, so the defendant was handcuffed. He consented to a search of his person and a “large amount” of methamphetamine was located in his front pocket.
1) DCA suppressed the evidence ruling that the detention became an unlawful, defacto arrest when the defendant was handcuffed. Thus, the consent search was tainted. “ A de facto arrest occurs when the officer’s conduct is more intrusive than necessary”. The defendant was not first frisked for weapon which would have been a “least restrictive alternative” to ensure officer safety. Nothing about the defendant’s height or demeanor qualified as objective legal officer safety concern.
EMERGENCY SEARCHES
“GET THE COPS HERE NOW” PHONE CALL JUSTIFIES AN EXIGENCY ENTRY (U.S. v. Snipes, 9USCA, 1/08).
At 0500 on New Year’s Day, a “very hysterical sounding” male called the Fort Hall, Idaho Police Department and screamed to the dispatcher: “Get the cops here now”. The call was then disconnected. Officers responded to the residence, knocked and announced, then entered through the partially open door. The defendant was sitting around a kitchen table with several other individuals and reacted in a surprised manner at the officer’s presence. The officers observed a large amount of drugs on the kitchen table. After a protective sweep for injured persons, the residence was secured, a search warrant obtained, and more drugs and an illegal firearm were recovered.
- 9USCA ruled an exigency entry was justified. Officers had an objectively reasonable basis for believing there was an immediate need to protect a person at the residence from serious harm. It was not necessary that anything else be done to verify the identity of the caller. “We will not impose a duty on the police to separate a true cry for help from a less deserving call for attention because the delay cost lives that could have been saved by an immediate police response”. “The possibility that immediate police action will prevent injury or death outweighs the inconvenience we suffer when the police interrupt our ordinary routines in response to what turns out to be a non-emergency call”.
FRISK
INVOLVEMENT IN MARIJUANA USE AND BAGGY CLOTHING PERMITS A FRISK (Peo. v. Collier, 2DCA, 9/08).
Defendant was a passenger in a vehicle stopped for having no front plate. A Los Angeles Sheriff’s deputy noted the strong odor of burned marijuana emitting from the vehicle interior. Defendant was ordered from the car. He was a large man and wore baggy shorts that hung down to his ankles and an untucked shirt that extended to his mid legs. The baggy clothing prevented the deputy from observing any bulging items on the defendant’s person. Knowing that he was about to occupy himself with a vehicle search for marijuana, the deputy first conducted a frisk for officer safety and found a loaded 9 mm Glock and a jar of PCP. A car search revealed only a marijuana joint.
1) DCA ruled the frisk was lawful. The smell of marijuana coming from the car gave probable cause to believe the defendant was in possession of or transporting drugs. “Gun often accompany drugs”. Due to the defendant’s attire, it was impossible to determine whether or not he was carrying a weapon. In connection with a traffic stop, when an officer has probable cause to believe that illegal drugs are in the vehicle, the officer may order the occupants out of the car and pat them down for weapons to ensure officer safety pending further investigation.
“TOTALITY OF CONDUCT” SUPPORTS A PAT DOWN FOR WEAPONS (Peo. v. H.M., 2DCA, 9/08).
Los Angeles Police Gang Unit officers were patrolling in a “stronghold” gang activity area where there had been a shooting the day prior. They observed the defendant, a known gang member, “sprinting” through heavy traffic on a busy street, causing motorists to slow and honk. The defendant appeared confused, was sweating profusely, and kept “looking back” over his shoulder. His demeanor suggested he was “trying to get away from something”. Defendant was detained for the traffic infraction and to investigate if any criminal activity had taken place (“I was unsure if he had robbed someone or he had been a victim”. “Just knowing the area, prior experience, having worked that area, demeanor, his actions”). Defendant was frisked (“If some type of crime had taken place, I thought that a weapon had been used”) and a loaded .25 automatic was found in the pocket of his trousers.
1) DCA ruled the frisk was justified. “The officer need not be absolutely certain that an individual is armed; the crux of the issue is whether a reasonably prudent person in the totality of circumstances would be warranted in the belief that his or her safety was in danger”. The high gang activity area of the stop; the defendant’s gang affiliation; the propensity of gang members to carry weapons; the unusual, suspicious behavior including “running really fast” though traffic; confused facial expression and sweating; and repeated glances behind as he ran suggested the defendant was frightened and fleeing from a dangerous situation. “Viewed objectively, through the lens of common sense and experience, H.M.’s odd behavior strongly suggested criminal activity was afoot”.
PAROLE SEARCH
SEARCH OF A “GENDER DISTINCTIVE“ PURSE NOT JUSTIFIED DURING A PAROLE SEARCH (Peo. v. Baker, 5DCA, 2008).
Defendant was a passenger in a vehicle stopped in Kern County. The male driver was on parole. When the defendant was asked to exit the car, she left her purse on the floorboard beneath where she had been seated. Officers conducted a parole search inside the vehicle and found methamphetamine in the defendant’s purse.
1) DCA ruled the search was unlawful. The “gender distinctive” purse was “staked out”. Even though the purse was located in the passenger area of the parolee’s car, where he exercised joint control, it was apparent the purse belonged to a woman. It had been situated at the defendant’s feet when she was directed from the car and her exit did not constitute abandonment of the property. “There is nothing to overcome the obvious presumption that the purse belonged to the sole female occupant of the vehicle who was not subject to a parole -condition search”.
PRIVATE PERSON SEARCH
INITIAL PRIVATE PERSON SEARCH WAS NOT A RESULT OF POLICE SPONSORSHIP OR SUGGESTION ( Peo. v. Wilkinson, 3DCA, 2008).
Two victims (boyfriend and girlfriend) co-occupied an apartment with the defendant. They suspected the defendant had modified the web cam and computer in their separate bedroom to secretly record personal activities. They reported their suspicions to the Sacramento Police Department. One victim asked the responding officer if he could search the defendant’s room while the defendant was away from the house. The officer stated: “Well, you can do whatever you want. It’s your apartment. But keep in mind you cannot act as my agent. I cannot ask you to go into the room, nor can you go into the room believing that you’re doing it for myself”. After the officer left, the victim’s entered the defendant’s room and discovered / viewed 5-7 discs containing images of the victim’s engaging in sexual conduct. A follow-up report of this discovery was made to the police. The officer viewed the discs already discovered and told the victims to search the defendant’s bedroom again and find more images. Seven to ten more discs were recovered during this second search. Defendant was convicted of burglary.
1) DCA ruled the first search was not a result of police sponsorship and the victims did not act as police agents. The officer’s comments did not amount to acknowledgment or acquiescence of the private search (“there must be some evidence of government participation in or affirmative encouragement of the private search”). The officer’s viewing of the first discs was lawful. The officer merely duplicated the search which the victims had already done when they previously viewed the discs. The defendant had lost reasonable expectation of privacy in this evidence.
2) The second search was a result of police sponsorship. When the victim asked the officer if he “could look through more of them” (discs), the officer replied: “Yeah”. This evidence was suppressed.
REASONABLE EXPECTATION OF PRIVACY
LOOKING THROUGH A SIDE WINDOW OF A HOME WAS JUSTIFIED BASED ON EXIGENCY (Peo. v. Gemmill, 3DCA, 5/08).
A Shasta County Sheriff’s deputy responded to a call of an unattended 2-year old child wandering in a residential area. The child was located and traced to a nearby home. There was no response to a knock on the front door. The deputy took the child to the station and called Child Protective Services. In retrospect, the deputy believed there may be another unattended child in the home, so he returned to the residence. He “banged loudly on the front door”, yelled “Sheriff’s Office” several times, but there was no response. The blinds to the front window were closed. The deputy walked around the side of the house where there was a window with a six inch gap in the blinds. He looked into the window and saw a 6 month old child playing with a plastic bag near his face. There was also a male inside who appeared to be “non-responsive”. The deputy entered the home and tended to the infant. He observed over a pound of marijuana within the infant’s reach. When he conducted a protective sweep to look for other unattended children, the deputy observed “the clutter, dirtiness, and general disarray of the home”. The defendant (mother) was convicted of child endangerment and possession of marijuana.
1) DCA ruled that although the observation through the side window was not made from an area accessible to the public, the deputy objectively believed a child was on the premises who needed emergency assistance. Peering through the window as a first choice to investigate the situation was a much less intrusive search than forcing entry into the premises. “We conclude that the presence of the unattended child, combined with the lack of information regarding whether there were siblings or others in the house, was sufficient to justify the deputy’s less intrusive look through the defendant’s side window to determine whether an emergency existed inside”. Thereafter, the entry into the home was justified “after seeing a child threatened with suffocation next to an unresponsive adult”.
RAISING UP ON TIP TOES TO LOOK OVER A FENCE RESULTS IN A PLAIN VIEW OBSERVATION (Peo. v. Chavez, 3DCA, 4/08).
Roseville Police officers were dispatched to a motel room to talk to the defendant’s girlfriend (victim). She reported an incident involving the taking of her vehicle earlier that day. As she was preparing to leave for work, the defendant had allegedly ordered her out of her Jeep, took the keys to the vehicle, drove her to work, then left with the Jeep stating he would never give it back to her. the victim asked officers to go to her residence (which she shared with the defendant and their 7 year old son) to determine the status of the vehicle and attempt to retrieve the keys. She was afraid to contact the defendant herself because he had been violent with her in the past and had a gun in the residence. Officers went to the home. The Jeep was parked in the driveway. The front grill was warm to the touch. Officers went to the front door and knocked, rang the doorbell, and announced themselves several times. There was no response. One officer walked a few feet along a concrete walkway which led to a 6 foot wooden fence flush with the front of the complex. The officer could see a sliding glass door on the other side of the fence. The officer then raised up about 3 inches onto his tip toes and shined his flashlight towards the door. He observed a shiny object on the ground near the sliding glass door and recognized this to be a cocked revolver. The officer felt it was his duty to retrieve the revolver because it was a safety hazard for a 7 year old child. The gate was locked, so he climbed over the fence, retrieved the gun, and climbed back over the fence. Defendant was eventually charged with being a felon in possession of a firearm and possessing a firearm with altered serial numbers.
1) DCA ruled the observation of the gun did not amount to a search. The paved walkway to the side gate was only a short distance from the front door. Walking in this area was not an unreasonable departure from normal access route to the house. There were no planters, trellises, or other physical / landscape barriers that would indicate this area was not implicitly open to public transit. The fact the officer had to raise himself up 3 inches on his tip toes to see over the fence was not an unreasonable intrusion. The height of the fence did not prevent anyone taller than the officer from making the same observation. The use of a flashlight did not affect the plain view observation of the revolver.
2) Entry into the defendant’s yard to retrieve the gun was based upon exigency. The officer knew a 7 year old child lived at the house and the gun’s location posed a safety hazard. Officers also had reason to believe the suspect posed a risk of violence. He had taken his girlfriend’s Jeep by fear and had allegedly committed past acts of domestic violence. The revolver was in an unusual location, situated as if it had been placed outside when the defendant became aware of the presence of the officers. The gun would be out of his possession, yet still within easy reach if needed. Climbing over the fence to retrieve the gun was a necessary act to protect both the child and the officers.
OBSERVATIONS OF A MARIJUANA CULTIVATION OPERATION WERE NOT MADE FROM WITHIN THE CURTILAGE OF THE HOME (U.S. v. Davis, 9USCA, 6/08).
Based upon an informant’s tip, officers from Josephine County, Oregon went to an 80 acre parcel belonging to the defendant. The property was extremely rural. The closest other residence was 1/2 mile away. Access onto the property included bypassing an electric gate where multiple users had security codes. Officers proceeded down a gravel road and approached a clearing within 500’ of the defendant’s home. They observed a detached workshop, surrounded by a chain link fence. The workshop was approximately 180’ from the main residence. The sound of a generator could be heard and numerous outdoor lights illuminated the area. From this distance, officers identified the smell of growing marijuana. Officers then left the gravel road and circled the property using a old logging skid road. They walked around a pond, through a heavily wooded gully, to a brushy, steep embankment below the workshop. This area was 200’ from the main house. They climbed up the embankment and walked through the brush along the outside of the chain link fence. They noted a 12” pipe coming from the workshop. The pipe protruded through the brush 5’-6’ outside the fence. Warm, humid air was being exhausted from the pipe. The air smelled strongly of marijuana. Based upon these observations, a search warrant was secured. Officers recovered 3,200 growing plants; 60 pounds of dry, processed marijuana; $50,000 cash in a safe, and over sixty firearms.
1) 9USCA ruled the officers were not within the curtilage of the residence when they made their observations. The workshop was set apart from the main residence. The exhaust pipe was outside the chain link fence surrounding the workshop. The workshop appeared to have no obvious residential or domestic use. Extremely bright lights illuminated the area, a generator was running, and officers could smell the odor of marijuana coming from inside the building.
STANDING
OUTSTANDING WARRANT IS AN INTERVENING CIRCUMSTANCE THAT REHABILITATES EVIDENCE SEIZED FROM A PASSENGER IN A VEHICLE DETAINED FOR A MISTAKEN TRAFFIC VIOLATION (Peo. v. Brendlin, Cal., 11/08 - New Ruling Remanded from U.S.).
A Sutter County Sheriffs deputy observed a vehicle with an expired registration tab. There was a valid Temporary Operating Permit affixed to the car window. The deputy made a traffic stop to investigate whether the permit actually belonged on the vehicle. The defendant was a passenger in the vehicle and had an outstanding “PAL” warrant. After arrest, a search of the vehicle recovered evidence linking the defendant to methamphetamine manufacture. On appeal, the California Attorney General stipulated there was no legal reason to stop the car. Cal. ruled the defendant, as a passenger, had no standing to challenge the traffic stop. U.S. unanimously overruled Cal., stating that a passenger is detained when a traffic stop is made and has standing to challenge a search and seizure. “Brendlin was seIzed from the moment the car came to a halt on the side of the road” and challenge the evidence recovered. The case was remanded back to Cal. for re-review.
1) Cal ruled the officer lacked reasonable suspicion for the traffic stop and all occupants of the vehicle were unlawfully detained. However, the officer’s discovery of an outstanding arrest warrant constituted an intervening circumstance that attenuated the taint of the unlawful detention. The evidence seized incident to the defendant’s arrest could not be suppressed absent evidence of “purposeful or flagrant police misconduct”. The deputy made the traffic stop in good faith believing he was permitted to check the validity of the registration permit (an area unclear in California law at the time). The stop lasted only several minutes before the presence of a valid arrest warrant was discovered. The discovery of the warrant separated the illegal traffic stop from the resulting search. The evidence found was admissible.
DESPITE PASSING A POSSIBLE COUNTERFEIT BILL FOR PAYMENT, AN OCCUPANT STILL RETAINED STANDING IN A RENTED ROOM (Peo. v. Munoz, 4DCA, 10/08).
Garden Grove Police officers responded to a call from a motel manager reporting that a unit had been rented in part with a counterfeit $20. bill. Officers examined the bill, felt a difference in paper density. but could not determine whether or not it was fraudulent (“It did not look obviously counterfeit”). Officers went to the room, knocked, heard running inside the room and someone talking, but there was no response. After two minutes of continued announcing, officers entered with a passkey. Defendant and her roommate were showering. Defendant stated she had received the $20. bill from her roommate. She consented to a search of the room and found three counterfeit $20. bills (all with the same serial number) and methamphetamine.
1) DCA ruled the defendant still retained standing in the room and the officer’s entry was unlawful. Officers had no evidence the room had been rented fraudulently. The bill in question was included with other denominations of valid currency for room payment; the bill may have been obtained from another person; and there were no obvious indications of it’s counterfeit nature. “A motel occupant who unknowingly pays for her lodging with counterfeit money, and without any intention to defraud, does not lose her reasonable expectation of privacy in the room”. As well, the motel manager had not expressed or taken any steps to evict the occupants. The manager’s potential ability to evict the occupants “was not the same thing as the motel actually choosing to do so”. The consent was contemporaneous to an unlawful entry and the evidence recovered was suppressed.
VEHICLE SEARCH
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SEARCH OF A VEHICLE AT A CAMPSITE ENCLOSED BY A “TENT-LIKE STRUCTURE” DOESN’T FALL UNDER THE “AUTO EXCEPTION” (Peo. v. Hughson, 1DCA, 12/08),Defendant was observed by a Bureau of Narcotics Enforcement agent selling drugs during the Sierra Nevada World Music Festival at the Mendocino County Fairgrounds. He was arrested and capsules containing MDMA, along with smaller baggies containing psilocybin mushrooms and cocaine were recovered from his backpack. Also recovered was a set of car keys and Hertz rental information for a
Hummer. Investigators went to an area of the fairgrounds set aside for camping during the festival and located the Hummer. Defendant had pitched a tent-like structure that enveloped the vehicle. Inside this makeshift structure were several smaller tents and a kitchen/eating area. All but the left front bumper of the vehicle was enclosed by the large tarp which was attached with “zip ties” to a 10’X30’ aluminum A-frame and to the mirrors, grill, and other points on the vehicle. There was an untied flap that served as the entrance/exit. Agents pulled aside the flap, entered, unlocked the Hummer, and searched. They recovered 800 MDMA capsules, marijuana, several pounds of mushrooms, a quarter pound of cocaine, and a 5 foot nitrous oxide tank with 1000 balloons.1) DCA ruled the warrantless search of the Hummer was unlawful and the evidence seized was suppressed. The appearance and location of the structure was equivalent to that of a large camping tent. The tent was located in a legal public campground. “Whether of short or long term duration, one’s occupation of a tent is entitled to the same protection from unreasonable governmental intrusion as that afforded to homes or hotel rooms”. The vehicle was not readily mobile for the purposes of the “Auto Exception.
COPYRIGHT 2009 - Ray Hill, Santa Rosa Junior College. Reproduction for in-service training purposes within criminal justice agencies or for classroom instruction purposes in educational institutions is permitted with permission from the author. Commercial or other use is prohibited without permission from the author.