Doris A. Calandra
Deputy Attorney General
Rachelle A. Newcomb
Deputy Attorney General
© California Department of Justice | January 15, 2018
93rd Reprint
incorporates Revision No. 193
California Peace Officers Legal Sourcebook
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California Electronic Communications Privacy Act
(Amended 1/1/18)
The California Electronic Communications Privacy Act, Senate Bill 178, took effect 1/1/2016 and made sweeping
changes to search warrant requirements for accessing electronic data. The provisions were most recently
amended in Senate Bill 811, effective 1/1/18.
§ 1546.
For purposes of this chapter, the following definitions
apply:
(a) An “adverse result” means any of the following:
(1) Danger to the life or physical safety of an
individual.
(2) Flight from prosecution.
(3) Destruction of or tampering with evidence.
(4) Intimidation of potential witnesses.
(5) Serious jeopardy to an investigation or undue
delay of a trial.
(b) “Authorized possessor” means the possessor of
an electronic device when that person is the owner of
the device or has been authorized to possess the
device by the owner of the device.
(c) “Electronic communication” means the transfer
of signs, signals, writings, images, sounds, data, or
intelligence of any nature in whole or in part by a
wire, radio, electromagnetic, photoelectric, or photooptical system.
(d) “Electronic communication information” means
any information about an electronic communication
or the use of an electronic communication service,
including, but not limited to, the contents, sender,
recipients, format, or location of the sender or
recipients at any point during the communication, the
time or date the communication was created, sent, or
received, or any information pertaining to any
individual or device participating in the
communication, including, but not limited to, an IP
address. Electronic communication information does
not include subscriber information as defined in this
chapter.
(e) “Electronic communication service” means a
service that provides to its subscribers or users the
ability to send or receive electronic communications,
including any service that acts as an intermediary in
the transmission of electronic communications, or
stores electronic communication information.
(f) “Electronic device” means a device that stores,
generates, or transmits information in electronic
form. An electronic device does not include the
magnetic strip on a driver’s license or an
identification card issued by this state or a driver’s
license or equivalent identification card issued by
another state.
(g) “Electronic device information” means any
information stored on or generated through the
operation of an electronic device, including the
current and prior locations of the device.
(h) “Electronic information” means electronic
communication information or electronic device
information.
(i) “Government entity” means a department or
agency of the state or a political subdivision thereof,
or an individual acting for or on behalf of the state or
a political subdivision thereof.
(j) “Service provider” means a person or entity
offering an electronic communication service.
(k) “Specific consent” means consent provided
directly to the government entity seeking
information, including, but not limited to, when the
government entity is the addressee or intended
recipient or a member of the intended audience of an
electronic communication. Specific consent does not
require that the originator of the communication have
actual knowledge that an addressee, intended
recipient, or member of the specific audience is a
government entity.
(l) “Subscriber information” means the name, street
address, telephone number, email address, or similar
contact information provided by the subscriber to the
service provider to establish or maintain an account
or communication channel, a subscriber or account
number or identifier, the length of service, and the
types of services used by a user of or subscriber to a
service provider.
2
§ 1546.1.
(a) Except as provided in this section, a government
entity shall not do any of the following:
(1) Compel the production of or access to electronic
communication information from a service provider.
(2) Compel the production of or access to electronic
device information from any person or entity other
than the authorized possessor of the device.
(3) Access electronic device information by means
of physical interaction or electronic communication
with the electronic device. This section does not
prohibit the intended recipient of an electronic
communication
from
voluntarily
disclosing
electronic communication information concerning
that communication to a government entity.
(b) A government entity may compel the production
of or access to electronic communication information
from a service provider, or compel the production of
or access to electronic device information from any
person or entity other than the authorized possessor
of the device only under the following circumstances:
(1) Pursuant to a warrant issued pursuant to Chapter
3 (commencing with Section 1523) and subject to
subdivision (d).
(2) Pursuant to a wiretap order issued pursuant to
Chapter 1.4 (commencing with Section 629.50) of
Title 15 of Part 1.
(3) Pursuant to an order for electronic reader records
issued pursuant to Section 1798.90 of the Civil Code.
(4) Pursuant to a subpoena issued pursuant to
existing state law, provided that the information is not
sought for the purpose of investigating or prosecuting
a criminal offense, and compelling the production of
or access to the information via the subpoena is not
otherwise prohibited by state or federal law. Nothing
in this paragraph shall be construed to expand any
authority under state law to compel the production of
or access to electronic information.
(c) A government entity may access electronic
device information by means of physical interaction
or electronic communication with the device only as
follows:
(1) Pursuant to a warrant issued pursuant to Chapter
3 (commencing with Section 1523) and subject to
subdivision (d).
(2) Pursuant to a wiretap order issued pursuant to
Chapter 1.4 (commencing with Section 629.50) of
Title 15 of Part 1.
(3) Pursuant to a tracking device search warrant
issued pursuant to paragraph (12) of subdivision (a)
of Section 1524 and subdivision (b) of Section 1534.
(4) With the specific consent of the authorized
possessor of the device.
(5) With the specific consent of the owner of the
device, only when the device has been reported as
lost or stolen.
(6) If the government entity, in good faith, believes
that an emergency involving danger of death or
serious physical injury to any person requires access
to the electronic device information.
(7) If the government entity, in good faith, believes
the device to be lost, stolen, or abandoned, provided
that the government entity shall only access
electronic device information in order to attempt to
identify, verify, or contact the owner or authorized
possessor of the device.
(8) Except where prohibited by state or federal law,
if the device is seized from an inmate’s possession or
found in an area of a correctional facility or a secure
area of a local detention facility where inmates have
access and the device is not in the possession of an
individual and the device is not known or believed to
be the possession of an authorized visitor. This
paragraph shall not be construed to supersede or
override Section 4576.
(9) Except where prohibited by state or federal law,
if the device is seized from an authorized possessor
of the device who is serving a term of parole under
the supervision of the Department of Corrections and
Rehabilitation or a term of postrelease community
supervision under the supervision of county
probation.
(10) Except where prohibited by state or federal law,
if the device is seized from an authorized possessor
of the device who is subject to an electronic device
search as a clear and unambiguous condition of
probation, mandatory supervision, or pretrial release.
(11) If the government entity accesses information
concerning the location or the telephone number of
the electronic device in order to respond to an
emergency 911 call from that device.
(d) Any warrant for electronic information shall
comply with the following:
3
(1) The warrant shall describe with particularity the
information to be seized by specifying, as appropriate
and reasonable, the time periods covered, the target
individuals or accounts, the applications or services
covered, and the types of information sought,
provided, however, that in the case of a warrant
described in paragraph (1) of subdivision (c), the
court may determine that it is not appropriate to
specify time periods because of the specific
circumstances of the investigation, including, but not
limited to, the nature of the device to be searched.
(2) The warrant shall require that any information
obtained through the execution of the warrant that is
unrelated to the objective of the warrant shall be
sealed and shall not be subject to further review, use,
or disclosure except pursuant to a court order or to
comply with discovery as required by Sections
1054.1 and 1054.7. A court shall issue such an order
upon a finding that there is probable cause to believe
that the information is relevant to an active
investigation, or review, use, or disclosure is required
by state or federal law.
(3) The warrant shall comply with all other
provisions of California and federal law, including
any provisions prohibiting, limiting, or imposing
additional requirements on the use of search
warrants. If directed to a service provider, the warrant
shall be accompanied by an order requiring the
service provider to verify the authenticity of
electronic information that it produces by providing
an affidavit that complies with the requirements set
forth in Section 1561 of the Evidence Code.
Admission of that information into evidence shall be
subject to Section 1562 of the Evidence Code.
(e) When issuing any warrant or order for electronic
information, or upon the petition from the target or
recipient of the warrant or order, a court may, at its
discretion, do either or both of the following:
(1) Appoint a special master, as described in
subdivision (d) of Section 1524, charged with
ensuring that only information necessary to achieve
the objective of the warrant or order is produced or
accessed.
(2) Require that any information obtained through
the execution of the warrant or order that is unrelated
to the objective of the warrant be destroyed as soon
as feasible after the termination of the current
investigation and any related investigations or
proceedings.
(f) A service provider may voluntarily disclose
electronic communication information or subscriber
information when that disclosure is not otherwise
prohibited by state or federal law.
(g) If a government entity receives electronic
communication information voluntarily provided
pursuant to subdivision (f), it shall destroy that
information within 90 days unless one or more of the
following circumstances apply:
(1) The government entity has or obtains the specific
consent of the sender or recipient of the electronic
communications about which information was
disclosed.
(2) The government entity obtains a court order
authorizing the retention of the information. A court
shall issue a retention order upon a finding that the
conditions justifying the initial voluntary disclosure
persist, in which case the court shall authorize the
retention of the information only for so long as those
conditions persist, or there is probable cause to
believe that the information constitutes evidence that
a crime has been committed.
(3) The government entity reasonably believes that
the information relates to child pornography and the
information is retained as part of a multiagency
database used in the investigation of child
pornography and related crimes.
(4) The service provider or subscriber is, or discloses
the information to, a federal, state, or local prison,
jail, or juvenile detention facility, and all participants
to the electronic communication were informed, prior
to the communication, that the service provider may
disclose the information to the government entity.
4
(h) If a government entity obtains electronic
information pursuant to an emergency involving
danger of death or serious physical injury to a person,
that requires access to the electronic information
without delay, the government entity shall, within
three court days after obtaining the electronic
information, file with the appropriate court an
application for a warrant or order authorizing
obtaining the electronic information or a motion
seeking approval of the emergency disclosures that
shall set forth the facts giving rise to the emergency,
and if applicable, a request supported by a sworn
affidavit for an order delaying notification under
paragraph (1) of subdivision (b) of Section 1546.2.
The court shall promptly rule on the application or
motion and shall order the immediate destruction of
all information obtained, and immediate notification
pursuant to subdivision (a) of Section 1546.2 if that
notice has not already been given, upon a finding that
the facts did not give rise to an emergency or upon
rejecting the warrant or order application on any
other ground. This subdivision does not apply if the
government entity obtains information concerning
the location or the telephone number of the electronic
device in order to respond to an emergency 911 call
from that device.
(i) This section does not limit the authority of a
government entity to use an administrative, grand
jury, trial, or civil discovery subpoena to do any of
the following:
(1) Require an originator, addressee, or intended
recipient of an electronic communication to disclose
any
electronic
communication
information
associated with that communication.
(2) Require an entity that provides electronic
communications services to its officers, directors,
employees, or agents for the purpose of carrying out
their duties, to disclose electronic communication
information associated with an electronic
communication to or from an officer, director,
employee, or agent of the entity.
(3) Require a service provider to provide subscriber
information.
(j) This section does not limit the authority of the
Public Utilities Commission or the State Energy
Resources
Conservation
and
Development
Commission to obtain energy or water supply and
consumption information pursuant to the powers
granted to them under the Public Utilities Code or the
Public Resources Code and other applicable state
laws.
(k) This chapter shall not be construed to alter the
authority of a government entity that owns an
electronic device to compel an employee who is
authorized to possess the device to return the device
to the government entity’s possession.
§1546.2.
(a)(1) Except as otherwise provided in this section,
any government entity that executes a warrant, or
obtains electronic information in an emergency
pursuant to Section 1546.1, shall serve upon, or
deliver to by registered or first-class mail, electronic
mail, or other means reasonably calculated to be
effective, the identified targets of the warrant or
emergency request, a notice that informs the recipient
that information about the recipient has been
compelled or requested, and states with reasonable
specificity the nature of the government investigation
under which the information is sought. The notice
shall include a copy of the warrant or a written
statement setting forth facts giving rise to the
emergency. The notice shall be provided
contemporaneously with the execution of a warrant,
or, in the case of an emergency, within three days
after obtaining the electronic information.
(2) Notwithstanding paragraph (1), notice is not
required if the government entity accesses
information concerning the location or the telephone
number of an electronic device in order to respond to
an emergency 911 call from that device.
(b) (1) When a warrant is sought or electronic
information is obtained in an emergency under
Section 1546.1, the government entity may submit a
request supported by a sworn affidavit for an order
delaying notification and prohibiting any party
providing information from notifying any other party
that information has been sought. The court shall
issue the order if the court determines that there is
reason to believe that notification may have an
adverse result, but only for the period of time that the
court finds there is reason to believe that the
notification may have that adverse result, and not to
exceed 90 days.
(2) The court may grant extensions of the delay of up
to 90 days each on the same grounds as provided in
paragraph (1).
5
(3) Upon expiration of the period of delay of the
notification, the government entity shall serve upon,
or deliver to by registered or first-class mail,
electronic mail, or other means reasonably calculated
to be effective as specified by the court issuing the
order authorizing delayed notification, the identified
targets of the warrant, a document that includes the
information described in subdivision (a), a copy of all
electronic information obtained or a summary of that
information, including, at a minimum, the number
and types of records disclosed, the date and time
when the earliest and latest records were created, and
a statement of the grounds for the court’s
determination to grant a delay in notifying the
individual.
(c) If there is no identified target of a warrant or
emergency request at the time of its issuance, the
government entity shall submit to the Department of
Justice within three days of the execution of the
warrant or issuance of the request all of the
information required in subdivision (a). If an order
delaying notice is obtained pursuant to subdivision
(b), the government entity shall submit to the
department upon the expiration of the period of delay
of the notification all of the information required in
paragraph (3) of subdivision (b). The department
shall publish all those reports on its Internet Web site
within 90 days of receipt. The department may redact
names or other personal identifying information from
the reports.
(d) Except as otherwise provided in this section,
nothing in this chapter shall prohibit or limit a service
provider or any other party from disclosing
information about any request or demand for
electronic information.
§1546.4.
(a) Any person in a trial, hearing, or proceeding may
move to suppress any electronic information obtained
or retained in violation of the Fourth Amendment to
the United States Constitution or of this chapter. The
motion shall be made, determined, and be subject to
review in accordance with the procedures set forth in
subdivisions (b) to (q), inclusive, of Section 1538.5.
(b) The Attorney General may commence a civil
action to compel any government entity to comply
with the provisions of this chapter.
(c) An individual whose information is targeted by a
warrant, order, or other legal process that is
inconsistent with this chapter, or the California
Constitution or the United States Constitution, or a
service provider or any other recipient of the warrant,
order, or other legal process may petition the issuing
court to void or modify the warrant, order, or process,
or to order the destruction of any information
obtained in violation of this chapter, or the California
Constitution, or the United States Constitution.
(d) A California or foreign corporation, and its
officers, employees, and agents, are not subject to any
cause of action for providing records, information,
facilities, or assistance in accordance with the terms
of a warrant, court order, statutory authorization,
emergency certification, or wiretap order issued
pursuant to this chapter.
California Peace Officers Legal Sourcebook
SUMMARY OF CONTENTS
Chapter
1.
-iPage
THIS SOURCEBOOK AND THE LAW ........................................................................... 1.1
Purpose of Sourcebook; how to use Sourcebook; definition of "the law."
2.
SEARCH AND SEIZURE - PERSONS ............................................................................. 2.1
The Fourth Amendment; the "Exclusionary Rule"; Proposition 8; "standing"; consensual
encounters; detentions; arrests, arrest warrants; searches incident to arrest; emergency
searches; consent searches; removal of evidence from suspect's body.
3.
SEARCH AND SEIZURE - PREMISES............................................................................ 3.1
Reasonable expectation of privacy; plain view; emergency entries and searches; knock and
notice; consent searches; searches incident to arrest; abandonment.
4.
SEARCH AND SEIZURE - VEHICLES ........................................................................... 4.1
Detentions; searches incident to arrest; searches based on probable cause; plain view; plain
smell; consent searches; vehicle as instrumentality of crime; impounds and inventories;
abandonment; emergencies.
5.
SEARCH AND SEIZURE - MISCELLANEOUS ............................................................. 5.1
Border searches; immigration holds; roadblocks and checkpoints; airports searches; use of
dogs; parole, PRCS, and probation searches; jail and prison searches; eavesdropping;
electronic surveillance; business records; searches by private persons; mail searches; Coast
Guard searches; agricultural and Fish and Game searches.
6.
SEARCH WARRANTS ...................................................................................................... 6.1
Jurisdiction; definitions; grounds for issuance; probable cause; informants; staleness;
describing places and property; errors and omissions; nighttime service; confidential
informants; execution and return; oral affidavits; telephonic oaths and remote affidavits;
telephonic search warrants; orders for AIDS/HIV testing; other court orders; the Fourth
Amendment Protection Act; the California Electronic Communications Privacy Act.
Rev. 1/16
California Peace Officers Legal Sourcebook
-ii-
SUMMARY OF CONTENTS
Chapter
7.
Page
STATEMENTS ................................................................................................................... 7.1
Importance of statements; Miranda warnings (Fifth Amendment); right to counsel (Sixth
Amendment); voluntariness of statements (Fourteenth Amendment); statements to private
persons; statements from witnesses; anticipating defenses.
8.
LINEUPS AND SHOWUPS ............................................................................................... 8.1
Suggestivity; reliability; searches and seizures during showups; right to attorney;
recommended procedures; suppression hearing; identifications at trial; police art.
9.
REPORT WRITING AND INVESTIGATIVE EVIDENCE ............................................. 9.1
Importance of reports; principles of clarity; documentation; body-worn cameras.
10.
CRIMINAL PROCESS ..................................................................................................... 10.1
Arraignment; charging; discovery; pretrial interviews; suppression hearings; plea bargains;
diversion; stages of trial; sentencing; appeals; federal courts.
11.
EVIDENCE
................................................................................................................... 11.1
Kinds of evidence; presentation of evidence; admissibility of evidence.
12.
TESTIMONY ................................................................................................................... 12.1
Pretrial preparation; appearance; demeanor; testimony.
13.
CRIMINAL LAW ............................................................................................................. 13.1
Parties; elements; intent; defenses; crimes against property; crimes against persons; general
criminal statutes; weapons and firearms.
Rev. 1/16
California Peace Officers Legal Sourcebook
SUMMARY OF CONTENTS
Chapter
14.
-iiiPage
JUVENILE LAW .............................................................................................................. 14.1
Authority for taking juveniles into temporary custody; detention of juveniles; constitutional
rights; school-related laws; children as victims of crimes; emancipation of minors; juvenile
probation/registration.
15.
CIVIL DISPUTES............................................................................................................. 15.1
Enforcing the law and keeping the peace; private person arrests; restraining and protective
orders; trespass; repossessions; landlord/tenant disputes; labor disputes; disputes with
businesses.
16.
TRAFFIC LAW ................................................................................................................ 16.1
General Vehicle Code provisions; definitions; arrest procedures; vehicle registration; driver
licensing; vehicle equipment requirements; accidents and accident reports; rules of the road;
removal of vehicles from public or private property.
17.
DRIVING UNDER THE INFLUENCE ........................................................................... 17.1
Offenses involving alcohol and drugs; implied consent law; admin per se; related Vehicle
Code sections; boating under the influence; flying under the influence.
18.
19.
20.
21.
TABLE OF CASES .......................................................................................................... 18.1
SUBJECT MATTER INDEX ........................................................................................... 19.1
LOCAL ORDINANCES ................................................................................................... 20.1
LOCAL POLICIES AND PROCEDURES ...................................................................... 21.1
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California Peace Officers Legal Sourcebook
BLANK PAGE
California Peace Officers Legal Sourcebook
THIS SOURCEBOOK AND THE LAW
1-i
TABLE OF CONTENTS
Page
I.
II.
III.
IV.
INTRODUCTION ............................................................................................................... 1.1
PURPOSE OF THIS SOURCEBOOK ............................................................................... 1.1
A. Education ....................................................................................................................... 1.1
B. Conviction .................................................................................................................... 1.1
C. Advisory Resource ........................................................................................................ 1.1
HOW TO USE THIS SOURCEBOOK .............................................................................. 1.2
A. Chapters ........................................................................................................................ 1.2
B. Indexes/Pagination ....................................................................................................... 1.2
C. Citations ........................................................................................................................ 1.3
D. Revisions ....................................................................................................................... 1.4
THE LAW .......................................................................................................................... 1.5
A. Constitutional Law ........................................................................................................ 1.5
1. The United States Constitution ............................................................................... 1.5
2. The California Constitution ..................................................................................... 1.5
B. Statutory Law ................................................................................................................ 1.7
C. Case Law ....................................................................................................................... 1.7
1. Precedent ................................................................................................................. 1.7
2. Departure from Precedent ....................................................................................... 1.7
3. The Officer's Role ................................................................................................... 1.8
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California Peace Officers Legal Sourcebook
BLANK PAGE
California Peace Officers Legal Sourcebook
THIS SOURCEBOOK AND THE LAW
I.
1.1
INTRODUCTION
The increasing complexity of the law is causing officers to complain, "You 'gotta' be a lawyer
to be a cop these days." There is a lot of truth to that statement. In fact, many times you are
expected to know the law better than most lawyers!
The reason you have to know the law so well is obvious, namely, you must often decide in
seconds what to do in a given situation. Lawyers may then take months to research and
prepare to argue the propriety or impropriety of what you did. After that, the trial, appellate
and supreme courts may again research and reflect for months (or even years) before they
decide whether what you did was right or wrong (often by a split decision).
Citizens and prosecutors sympathize with your plight. Prosecutors do not, however,
sympathize with a common notion among officers that the law can be learned and applied by
straight memorization. It cannot. For officers who would rather memorize than think, this
Sourcebook will be of little help. "Hard-and-fast" rules are few and far between. Adaptation
to a specific situation is almost always required. The sooner you realize this, the better officer
you will be. Only if you combine the principles in this Sourcebook with good faith and good
judgment will your conduct have less chance of becoming a casualty statistic before the
courts.
II.
PURPOSE OF THIS SOURCEBOOK
A.
Education
This Sourcebook is primarily intended to be used both as an educational and training text--an
explanation of how "the law" relates to the many different aspects of your job--and also a
means of helping you keep up with all the major changes in criminal law. It is, as its name
indicates, merely a legal reference and is not intended as a directive to set policy or guidelines
for your department.
B.
Conviction
This Sourcebook has a "conviction bias." If the purpose of your investigation is to just arrest
or confiscate property rather than convict, this Sourcebook is not for you. If, on the other
hand, you are interested in increasing your professionalism through knowledge of the law and
techniques which will result in obtaining and upholding convictions, keep reading.
C.
Advisory Resource
This Sourcebook, of course, does not attempt to cover every aspect of the law which you
might encounter on the job, nor can it advise you
Rev. 9/00
California Peace Officers Legal Sourcebook
1.2
THIS SOURCEBOOK AND THE LAW
what to do in every conceivable situation. As professionals, you will be required in the vast
majority of cases to use your good judgment.
What this Sourcebook does give you instead is the basic legal principles and information-often with specific examples--to help you best exercise that good judgment. However, the
Sourcebook is not intended to set policy or guidelines for your department, or to act as a
substitute for local rules and regulations. In these matters, you should consult your
department and/or legal advisor, and enter any relevant materials in the designated space at
the back of the Sourcebook.
III.
HOW TO USE THIS SOURCEBOOK
A.
Chapters
As you can see from the Summary of Contents, this book contains 17 substantive chapters
which discuss the primary areas of the law to which an officer is exposed in his/her
(hereinafter "his") job. Some areas (such as search and seizure) change much more quickly
than others (such as report writing or testifying), but all are important aspects of your
profession.
The law is sometimes described as a "seamless web." This description is particularly
appropriate with reference to a police officer's job and the contents of this Sourcebook.
Because of the strong interrelationship of the subjects contained, this Sourcebook will not be
as useful, and may even be misleading, if you focus on only one small part as a reference
source in a particular situation.
For that reason, it is absolutely crucial to your successful understanding of the law and use of
this Sourcebook that you study and learn it as a whole rather than focusing on isolated
chapters.
B.
Indexes/Pagination
At the beginning of each chapter, there is a detailed table of contents for that chapter.
In addition, an index of case name citations (Table of Cases, ch. 18) and a Subject Matter
Index (ch. 19) have been included in this Sourcebook so that you can quickly look up any
case or issue.
Since every chapter starts with its own page-number series (i.e., 7.1, 7.2, etc.) references to a
specific portion of a chapter will first show the chapter number, followed by a period and then
the page number.
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California Peace Officers Legal Sourcebook
THIS SOURCEBOOK AND THE LAW
Example:
1.3
"See p. 7.12" means that you should look up the page of chapter 7 bearing the number
"7.12" to find more or different information on the topic under discussion; and "See
ch. 7" refers to the entire chapter.
C.
Citations
1.
Case Names
In most instances throughout this Sourcebook--both in the text and the case name index at the
end--the name of only one party (usually the defendant) will be used when referring to case
names. For example, you will see only the name Miranda, Reyes, or Keithley, even though
the full case name is Miranda v. Arizona, People v. Reyes, or People v. Superior Court
(Keithley).
2.
Case Reporters
Cases are published in books called "reports" or "reporters." Usually, a given "reporter"
contains all the cases from a specific court or level of court. For instance, "U.S." means the
United States Reports, containing cases from the United States Supreme Court; "Cal." means
the California Reports, containing cases from the California Supreme Court; "Cal.App."
means the California Appellate Reports, containing cases from the California Courts of
Appeal. Every so often, a reporter will change its format and start over with a new "series."
Thus, "Cal.App." refers to the first series of the California Appellate Reports, "Cal.App.2d"
refers to the second series, "Cal.App.3d" refers to the third series, and "Cal.App.4th" refers to
the fourth series (which began in 1992 and is the one currently being published).
Similarly, "Cal.3d" means the third series of the California Reports (containing state Supreme
Court decisions), and "Cal.4th" is referring to the fourth series, which is the one currently
being published.
Example:
The citation "Woods (1999) 21 Cal.4th 668" means that the case was decided by the
California Supreme Court in 1999 and can be found in volume 21 of the California
Reports, fourth series, starting at p. 668.
Example:
The citation "Allen (2000) 78 Cal.App.4th 445, 452" means that the case was decided
by one of the California Courts of Appeal in 2000 and can be found in the 78th
volume of the California Appellate Reports, fourth series, starting at page 445, with
the particular point it is being cited for appearing at page 452.
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Example:
The citation "(1990) 50 Cal.3d 1" means that the case was decided by the California
Supreme Court in 1990 and can be found in the 50th volume of the California Reports,
third series, at page 1.
Example:
The citation "(1989) 215 Cal.App.3d 230" means that the case was decided by one of
the California Courts of Appeal in 1989 and can be found in the 215th volume of the
California Appellate Reports, third series, at page 230.
Example:
The citation "(1982) 456 U.S. 798" means that the case was decided by the United
States Supreme Court in 1982 and can be found in the 456th volume of the United
States Reports, first series, at page 798.
Note:
Decisions by the United States Supreme Court are collected in more than one
"reporter." Many of the U.S. citations you see will be to the "Supreme Court
Reporter," because it is published sooner than the "United States Reports."
Thus a typical citation to a recent Supreme Court case might be "(2000) 120
S.Ct. 2326," which means volume 120, page 2326, of the Supreme Court
Reporter.
If you understand this system and have access to a law library, you should be able to locate
any opinion referred to in this Sourcebook, in the event you would like to read the entire court
opinion as it was written.
D.
Revisions
"The law" changes all the time, sometimes because of new legislation, but more often because
of new decisions from the courts. Before this Sourcebook came along in 1984, it was very
difficult for officers to have any realistic way of keeping abreast of these changes.
The Sourcebook attempts to fill this void by issuing a “revision packet” every 60 days to
reflect important new court decisions (case law) and new legislation. To keep your
Sourcebook current, you must be sure to obtain and insert all revisions, in sequence.
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IV.
1.5
THE LAW
"The law" comes from three primary sources:
-
the United States and California Constitutions;
-
statutes; and
-
case law.
A.
Constitutional Law
1.
The United States Constitution
a.
The Supreme Law
The United States Constitution is the supreme law of the land. (U.S. Const., art. VI.)
No statute or case ruling by a court can stand which is in conflict with the
Constitution.
b.
The Bill of Rights
The first 10 amendments to the United States Constitution (there are 26 now) were
adopted in 1791, and are known as the Bill of Rights. Many of them are important to
criminal law (free speech, trial by jury, right to counsel, etc.), but by far the greatest
impact comes from the Fourth (searches, seizures, warrants) and Fifth (selfincrimination) Amendments. This Sourcebook devotes several chapters to these two
amendments and many of the cases interpreting them.
2.
The California Constitution
The California Constitution begins with a Declaration of Rights, which reflects the same
concerns as the Bill of Rights. For example, the right to freedom from unreasonable searches
and seizures appears at article I, section 13, and the right against self-incrimination is
contained in article I, section 15.
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In the late 1970's and early 1980's, the California Supreme Court based many of its decisions
on this state's Constitution. Citizens (including suspects) were given more rights under the
California Constitution than they are entitled to under federal law. These "independent state
grounds" caused many cases to be dropped or lost even though they could have been
prosecuted under federal standards. The people of this state attempted to stop this trend when
they enacted Proposition 8, in 1982, and Proposition 115, in 1990, both of which amended the
California Constitution. Both, however, were only partially successful.
Proposition 8, as construed in Lance W. (1985) 37 Cal.3d 873 and May (1988) 44 Cal.3d 309,
left California's "independent state grounds" intact. In other words, the additional substantive
rights which Californians are accorded under this state's Constitution still exist. However,
exclusion of evidence, as a remedy for violation of those rights, was eliminated. As long as
the evidence was obtained in compliance with the federal rules, i.e., as long as there was no
violation the Fourth, Sixth or Fourteenth Amendments of United States Constitution, the
evidence is still admissible in court.
Proposition 115 attempted to streamline the criminal justice system in many different ways.
One of these was to expressly eliminate "independent state grounds" altogether by precluding
California courts from interpreting this state's Constitution so as to provide any additional or
greater rights than are afforded under the United States Constitution. However, this particular
portion of Proposition 115 was invalidated by the California Supreme Court as an improper
"revision" of this state's Constitution in Raven (1990) 52 Cal.3d 336.
Accordingly, in the few and ever dwindling areas where clear differences between federal and
California law still remain, your sworn duty, as always, is to uphold and follow this state's
Constitution.
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B.
1.7
Statutory Law
Besides the United States and California Constitutions, "the law" also comes from statutes
which appear in the various "codes," such as the Penal Code, Vehicle Code, Health and
Safety Code, Welfare and Institutions Code, Business and Professions Code, etc. California
has over two dozen different "codes." Predictably, this Sourcebook deals most frequently
with the Penal Code and the Vehicle Code.
C.
Case Law
The vast majority of "the law" is case law, i.e., decisions or "opinions" of courts which
interpret the meaning of statutes and of the United States and California Constitutions. Every
year, hundreds of published opinions are handed down by the federal and state appellate and
supreme courts which have a direct impact on how you are to conduct your job. For instance,
if an officer makes some binocular-aided observations of someone's property, the courts may
ultimately decide whether, under the specific facts of that case, an "unreasonable search" took
place or the suspect's right of privacy was violated.
1.
Precedent
It is important for you to understand that a court makes its decision based on other, previous
court decisions, called "precedent." Courts (especially intermediate appellate courts) try to
rule consistently with past decisions in order to maintain an orderly system where people can
know what conduct is permissible.
2.
Departure From Precedent
For various reasons, however, courts do not always follow precedent. Sometimes one
appellate court will simply disagree with another; sometimes a given court will change its
mind and disregard its own earlier opinion. But most commonly, "new law" is made not by
departing from precedent, but because new facts are involved. Every case seems to have
something about it which is different from any situation which has gone before. It is the
application of the Constitution or statutes to these different fact situations which typically
results in "new law."
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1.8
3.
THIS SOURCEBOOK AND THE LAW
The Officer's Role
Your actions in investigating a case and obtaining evidence often turn out to be the critical
part of a case. When you do not understand the law, use bad judgment, or act in bad faith,
you may be the reason a prosecutor refuses to charge the case or, if it does get charged, the
reason that it gets dismissed, pled out, or that "bad case law" is created.
On the other hand, you can play a key role in helping to make "good case law" by knowing
and following the existing law, using good judgment and good faith, exceeding the existing
rules of law only in emergency circumstances, and carefully explaining in your reports and
your testimony the reasons why you felt your actions were necessary. It is hoped this
Sourcebook will help you attain that goal.
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2-i
TABLE OF CONTENTS
Page
I.
II.
III.
INTRODUCTION ............................................................................................................... 2.1
A. The Fourth Amendment ................................................................................................ 2.1
B. The Exclusionary Rule .................................................................................................. 2.2
1. Proposition 8 ........................................................................................................... 2.2a
2. "Standing" .............................................................................................................. 2.2a
3. "Good Faith"/Non-Culpable Conduct ..................................................................... 2.4a
C. Warrantless Searches and Seizures - General Considerations ..................................... 2.5
CONSENSUAL ENCOUNTERS ....................................................................................... 2.6
A. Definition ..................................................................................................................... 2.6
B. Contacts/Requesting Identification ............................................................................... 2.6
1. Requests for Identification ....................................................................................... 2.6c
2. "Knock and Talk" ..................................................................................................... 2.6d
C. Searches and Seizures During Consensual Encounter .................................................. 2.6d
D. Officer Safety ................................................................................................................ 2.6e
DETENTIONS/STOPS ....................................................................................................... 2.7
A. Definition and Purpose .................................................................................................. 2.7
B. Reasonable Suspicion ................................................................................................... 2.8
1. Specific Factors ....................................................................................................... 2.10b
a. Nighttime/High Crime Area .............................................................................. 2.10b
b. Race .................................................................................................................. 2.10d
c. Flight ................................................................................................................. 2.11
d. Your Experience ................................................................................................ 2.12a
e. Officer Safety .................................................................................................... 2.12a
f. Suspected Weapons Violations ......................................................................... 2.12c
g. Drug Courier Profile......................................................................................... 2.12c
h. Suspected Immigration Violation...................................................................... 2.12c
2. Information from Others ......................................................................................... 2.12d
a. Anonymous Tips ............................................................................................... 2.12e
b. 9-1-1 Calls ......................................................................................................... 2.12f
3. Effect of Unlawful Detention/Attenuation .............................................................. 2.12h
C. Duty to Stop/Use of Force to Stop Suspect ................................................................... 2.13
D. Investigative Actions - Identification ............................................................................ 2.13
E. Use of Force/Physical Restraints................................................................................... 2.14b
F. Moving the Suspect ....................................................................................................... 2.16
G. Time Limitations ........................................................................................................... 2.18
1. Increased Suspicion ................................................................................................. 2.18
2. Decreased Suspicion ............................................................................................... 2.18a
3. Field Interrogation Cards ........................................................................................ 2.18b
H. Miranda Warnings ......................................................................................................... 2.19
I. Officer Safety Detentions .............................................................................................. 2.19
J. Searches During Detentions (Patdowns/Frisks) ........................................................... 2.20
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Page
IV.
V.
K. Seizures During Detentions ........................................................................................... 2.21
1. In General ................................................................................................................ 2.21
2. Plain View, Smell or Touch .................................................................................... 2.21
3. Containers................................................................................................................ 2.22
4. Abandonment .......................................................................................................... 2.22c
L. Informing the Suspect of His/Her Status ...................................................................... 2.22f
M. Non-Searches ................................................................................................................ 2.22f
ARRESTS ........................................................................................................................... 2.23
A. Definition and Scope ..................................................................................................... 2.23
B. Who May Arrest ............................................................................................................ 2.23
1. Mandatory Arrests for Violations of Protective Orders .......................................... 2.24a
2. Federal Employees - Authority to Arrest for State Offenses .................................. 2.24a
C. How to Arrest ................................................................................................................ 2.24a
1. Immunity for Drug-Related Overdoses ................................................................... 2.24b
2. Arrest of Foreign Nationals ..................................................................................... 2.24b
D. When You May Arrest .................................................................................................. 2.24b
E. Where You May Arrest ................................................................................................. 2.25
F. Arraignment/Probable Cause Determination/Release from Custody............................ 2.25
1. Section 827.1 - Arrests by Warrant - Misdemeanors .............................................. 2.26
2. Section 849 - Warrantless Arrests - Felony or Misdemeanor ................................. 2.26a
3. Section 853.6 - Warrantless Arrests - Misdemeanors ............................................. 2.26a
4. Departmental Policies ............................................................................................. 2.27
G. Probable Cause .............................................................................................................. 2.28
1. Passengers ............................................................................................................... 2.28d
ARREST WARRANTS/SUMMONSES ............................................................................ 2.29
A. Arrests in Homes/The Warrant Requirement ................................................................ 2.31
1. Suspect's Residence ................................................................................................. 2.31
2. Third Party's Residence ........................................................................................... 2.31
3. Purpose Behind Requirement .................................................................................. 2.31
B. Exceptions to the Warrant Requirement ....................................................................... 2.32
1. Exigent Circumstances ............................................................................................ 2.32
2. Consent .................................................................................................................... 2.35
a. Tricks/Misrepresentation of Purpose ................................................................ 2.35
b. Probation/Parole/Supervised Release Conditions ............................................. 2.36
c. Undercover Entries ............................................................................................ 2.36
d. Re-Entries .......................................................................................................... 2.37
3. When Probable Cause Arises After Entry ............................................................... 2.38
4. Possession of a Search Warrant .............................................................................. 2.38
5. Getting Suspect to Come Outside ........................................................................... 2.39
C. Forcible Entry/Knock and Notice ................................................................................. 2.40
1. Belief That Suspect Is Present ................................................................................. 2.40
2. Compliance Excused ............................................................................................... 2.41
D. Effect of Improper Arrest .............................................................................................. 2.41
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Page
VI.
VII.
VIII.
IX.
SEARCHES INCIDENT TO ARREST .............................................................................. 2.42
A. The Requirement of an Arrest ....................................................................................... 2.43
B. The Area/Items Subject to Search ................................................................................. 2.44
1. Cell Phone Searches Incident to Arrest ................................................................... 2.46
C. The "Contemporaneous" Requirement .......................................................................... 2.47
EMERGENCY SEARCHES............................................................................................... 2.48
CONSENT SEARCHES ..................................................................................................... 2.48
SEARCHES AND SEIZURES OF EVIDENCE FROM A SUSPECT'S BODY .............. 2.49
A. Bodily Intrusion Search Warrants ................................................................................. 2.50
1. Blood Test Warrants................................................................................................ 2.51
2. Warrants for Surgery and Internal Probing ............................................................. 2.51
B. Warrantless Bodily Intrusion Searches ......................................................................... 2.51
1. Blood Samples......................................................................................................... 2.52
2. Stomach Pumping/Vomiting ................................................................................... 2.53
3. Other Warrantless Body Searches ........................................................................... 2.53
C. Use of Force .................................................................................................................. 2.55
1. Force to Obtain Blood Sample ................................................................................ 2.55
2. Removing Evidence from Suspect's Mouth ............................................................ 2.56
D. Drug Testing .................................................................................................................. 2.57
E. Warrantless DNA Testing ............................................................................................. 2.58
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I.
INTRODUCTION
A.
The Fourth Amendment
2.1
Both the United States and California Constitutions prohibit "unreasonable" searches and
seizures of people, houses, and personal property.
"The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized." (Fourth Amend., U.S. Const.; Cal.
Const., art. 1, § 13.)
The Fourth Amendment does not contain a warrant requirement. Rather, it "prohibits
unreasonable searches and seizures." (Bryant (2014) 60 Cal.4th 335, 365.)
A "search" occurs when a government officer infringes upon an expectation of privacy that
society considers reasonable. (Jacobsen (1984) 466 U.S. 109, 113.)
A "seizure" of property occurs when there is some meaningful interference with an
individual's possessory interest in that property. (Horton (1990) 496 U.S. 128; Bennett (1998)
17 Cal.4th 373, 385.)
A "seizure" of a person occurs: (1) when a peace officer physically applies force or (2) when
a person voluntarily submits to a peace officer's authority. (Hodari D. (1991) 499 U.S. 621,
626; Turner (1994) 8 Cal.4th 137, 180.)
"The Fourth Amendment is not violated unless a legitimate expectation of privacy is
infringed." (Clark (1993) 5 Cal.4th 950, 979; Tyrell J. (1994) 8 Cal.4th 68, 83.)
This infringement must be by the government or its agents--private citizens cannot violate
the Fourth Amendment. "The proscription against unreasonable search and seizure in the
Fourth Amendment applies only to the acts of government officers or their agents." (Skinner
(1989) 489 U.S. 602, 614; Jones (1998) 17 Cal.4th 329, 333.)
Also, the search or seizure must be intentional, rather than merely an accident. "The Fourth
Amendment addresses 'misuse of power,' not the accidental effects of otherwise lawful
government conduct." (Brower (1989) 489 U.S. 593, 596, 597.)
Finally, the "Fourth Amendment does not mandate that police officers act flawlessly, but only
that they act reasonably." (Rohrig (6th Cir. 1996) 98 F.3d 1506, 1524.)
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2.2
B.
SEARCH AND SEIZURE - PERSONS
The Exclusionary Rule
When challenged, the legality of a search or seizure normally is decided prior to trial, either
as part of the preliminary hearing or at a separate pretrial suppression motion, or both. (Pen.
Code, § 1538.5; see Welf. & Inst. Code, § 700.1 for juvenile proceedings.) The defendant
must prove that he or she had "standing" to bring the motion by proving a sufficient privacy
interest in the place searched or item seized. The prosecution then bears the burden of
proving the justification for a search or seizure. (Johnson (2006) 38 Cal.4th 717, 723.)
Based solely on the evidence presented at the suppression hearing, the court makes two
separate determinations. First, whether the police acted legally, that is, whether the search or
seizure was reasonable or unreasonable. (Leon (1984) 468 U.S. 897, 906.) This question is
decided objectively without regard to what the officer was personally or "subjectively"
thinking. (Sullivan (2001) 532 U.S. 769, 771-772; Whren (1996) 517 U.S. 806; Scott (1978)
436 U.S. 128, 135-136.)
Second, if the court finds that the search or seizure was unreasonable, it must then decide
whether the evidence must be excluded at trial. The "exclusionary rule" is a "sanction"
created by the Supreme Court to deter improper police conduct. (Davis (2011) 564 U.S. 229;
Scott (1998) 524 U.S. 357, 363.) It is not a personal constitutional right. (Davis (2011) 564
U.S. 229, 236; Herring (2009) 555 U.S. 135.) To trigger the exclusionary rule, the police
conduct must be sufficiently deliberate so that exclusion of evidence would meaningfully
deter future conduct. (Herring (2009) 555 U.S. 135.)
The exclusionary rule, therefore, will not be invoked for every violation of the Fourth
Amendment--only those violations that produce illegally obtained evidence and those for
which suppression will provide a deterrent to future police misconduct. (Hudson (2006) 547
U.S. 586, 596-597.) For instance, if an erroneous seizure is a result of negligence, as opposed
to systemic error or a reckless disregard of constitutional requirements, the evidence will not
be suppressed. (Robinson (2010) 47 Cal.4th 1104.)
There are two additional considerations before the exclusionary rule will be invoked. First is
whether the evidence was obtained as a direct result or "exploitation" of the illegal police
conduct (involving considerations of "attenuation" or intervening circumstances); second is
whether the evidence would have been legally discovered anyway (inevitable discovery or
discovery through an independent source). (See generally Strieff (2016) 136 S.Ct. 2056;
Brendlin (2008) 45 Cal.4th 262, 268-269; Robles (2000) 23 Cal.4th 789, 800-801; see also
Redd (2010) 48 Cal.4th 691, 721--inevitable discovery through search incident to arrest;
Chapman (2012) 204 Cal.App.4th 1004--the coroner would have discovered the evidence
under victim's body.)
Note:
A Fourth Amendment violation can result in a 42 U.S.C. § 1983 civil rights
action, which the Supreme Court has identified as an appropriate deterrent for
intentional violations. (Hudson (2006) 547 U.S. 586, 596-597.)
Note:
Inculpatory statements, just like tangible evidence, can be the fruit of an illegal
search subject to suppression, absent attenuation. (Shelter (9th Cir. 2012) 665
F.3d 1150.)
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2.2a
Also, the exclusionary rule does not apply to evidence of criminal conduct or testimony of an
officer's observations of criminal conduct during an unlawful detention. A person detained
illegally is not immunized from prosecution for any crime committed during the illegal
detention. For example, the exclusionary rule "does not immunize crimes of violence
committed on a peace officer, even if they are preceded by a Fourth Amendment violation."
(Richard G. (2009) 173 Cal.App.4th 1252, 1261.)
Example:
Officers located two males matching an anonymous caller's description of persons
involved in a recent disturbance possibly involving a firearm. After repeatedly
ignoring the officers' commands to stop and sit on the ground, Richard threatened the
officers, resisted a control hold, and punched one of them. The court found that any
Fourth Amendment violation could not result in the suppression of evidence of the
assault on the officer and resisting arrest. (Richard G. (2009) 173 Cal.App.4th 1252,
1260-1261--includes a survey of similar limits on the use of the exclusionary rule.)
Lastly, the exclusionary rule applies to criminal actions. It extends to civil proceedings only
where the proceedings "so closely identify" with criminal proceedings that they are "quasicriminal" in nature. (Park (2007) 152 Cal.App.4th 877, 883; see Lance W. (1985) 37 Cal.3d
873, 892.)
1.
Proposition 8
Prior to the passage of Proposition 8 (1982), evidence was excluded if it was obtained in
violation of the federal or California Constitution. Proposition 8 eliminated California's
"independent state grounds" as a basis for excluding evidence. As long as the police do not
violate the Fourth, Sixth, or Fourteenth Amendment of the United States Constitution when
obtaining evidence, or the constitutionally based procedures set out in Miranda v. Arizona,
the evidence is admissible in court. (Lance W. (1985) 37 Cal.3d 873, 879; May (1988) 44
Cal.3d 309; Bradford (1997) 15 Cal.4th 1229, 1291; Bennett (1998) 17 Cal.4th 373, 390.)
For instance, the violation of a state statute, without more, does not establish a basis for
suppression under the Fourth Amendment: suppression must be mandated by the federal
Constitution. (McKay (2002) 27 Cal.4th 601, 605; Guzman (2011) 201 Cal.App.4th 1090-statutory notice violation; Mateljan (2005) 129 Cal.App.4th 367; Hardacre (2004) 116
Cal.App.4th 1292, 1300; McHugh (2004) 119 Cal.App.4th 202; Moore (2008) 553 U.S. 164,
176-177--arrests and searches incident to arrest; Redd (2010) 48 Cal.4th 691, 720, fn. 11.)
Of course, to the extent that California's "independent" rights may continue to exist, you, as
sworn peace officers, are obligated to uphold them, the same as you must uphold any other
part of this state's Constitution or statutory law. (McKay (2002) 27 Cal.4th 601, 618.)
2.
Standing
A defendant must establish "standing" to move for the suppression of evidence. "Standing"-which is more accurately viewed as a question of "privacy"--means that a defendant must
show that the illegal search or seizure invaded his or her own personal, reasonable, and
legitimate expectation of privacy. (Carter (1998) 525 U.S. 83, 88; Rakas (1978) 439 U.S.
128, 143; Badgett (1995) 10 Cal.4th 330, 343, 353; McPeters (1992) 2 Cal.4th 1148, 1171;
Hoag (2000) 83 Cal.App.4th 1198, 1203; Roybal (1998) 19 Cal.4th 481, 507.)
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Note:
Likewise, a defendant is not entitled to claim that some other person's Miranda
(Fifth) or Sixth Amendment rights were violated. (Badgett (1995) 10 Cal.4th
330, 343; Barnett (1998) 17 Cal.4th 1044, 1137.) However, admission at trial
of a coerced, involuntary statement from a third party may result in a
fundamentally unfair trial for the defendant (a violation of Fourteenth
Amendment due process) if the defendant can show that the coercion rendered
the evidence unreliable. (See Badgett (1995) 10 Cal.4th 330, 343-345;
J. Clyde K. (1987) 192 Cal.App.3d 710, 720.)
The law of "standing" can have a significant impact on criminal prosecutions. For example,
suppose that during a vehicle stop, you make a warrantless search and seizure of drugs from a
briefcase located between the driver (defendant) and another person. As a prerequisite to
making a successful pretrial suppression motion, the defendant will have to establish at the
hearing ownership of the briefcase to demonstrate his "standing." (Thompson (1996) 43
Cal.App.4th 1265, 1269; Thompson (1990) 221 Cal.App.3d 923; Contreras (1989) 210
Cal.App.3d 450.)
In other words, the defendant "bears the burden of showing a legitimate expectation of
privacy." (Roybal (1998) 19 Cal.4th 481, 507; Rawlings (1980) 448 U.S. 98, 104.) If he
denies ownership or any possessory interest--or if he denied it earlier, such as when he was
arrested--he may be precluded from litigating the merits of his motion. (Stanislawski (1986)
180 Cal.App.3d 748, 757; Dasilva (1989) 207 Cal.App.3d 43, 49; Decoud (9th Cir. 2006) 456
F.3d 996, 1007-1008; Gonzales (9th Cir. 1992) 979 F.2d 711, 714; but see Allen (1993) 17
Cal.App.4th 1214, 1218-1223.) And if he admits ownership he will not be able to change his
story at trial without the risk of being impeached by his earlier suppression testimony.
(Beltran-Gutierrez (9th Cir. 1994) 19 F.3d 1287, 1289; Johnson (1984) 162 Cal.App.3d 1003,
1010.)
Establishing "standing," however, can be tricky. Among the factors to be considered are (1)
whether the defendant has a property or possessory interest in the thing seized or the place
searched; (2) whether he has the right to exclude others from that place; (3) whether he has
exhibited a subjective expectation that it would remain free from governmental invasion; (4)
whether he took normal precautions to maintain his privacy; and (5) whether he was
legitimately on the premises. (Roybal (1998) 19 Cal.4th 481, 507.)
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2.3
For example, a person who is merely present in a hotel room that is rented to another lacks
standing to question the validity of the police entry (Koury (1989) 214 Cal.App.3d 676;
Hernandez (1988) 199 Cal.App.3d 1182), including compliance with "knock and notice"
requirements (Lockett (9th Cir. 1990) 919 F.2d 585). Likewise, a person who has rented a
room with a stolen credit card lacks standing to contest entry by police, including compliance
with knock and notice. (Satz (1998) 61 Cal.App.4th 322, 326-327; but see Bautista (9th Cir.
2004) 362 F.3d 584; Cunag (9th Cir. 2004) 386 F.3d 888, 894-895--motel must take
"justifiable affirmative steps to repossess" the room to terminate the patron's expectation of
privacy; Munoz (2008) 167 Cal.App.4th 126--partial payment with a $20 counterfeit bill did
not terminate continued motel room rental or extinguish patrons' expectation of privacy in the
room.) A landlord has no privacy interest in units occupied by tenants. (Griffith (2012) 207
Cal.App.4th 982, 993.)
Standing also would be lacking for a short term (2-1/2 hour) visitor to an apartment being
used for commercial purposes (packaging dope) (Carter (1998) 525 U.S. 83, 88-91) or for a
mere "visitor" to a home who is there with the host's permission, even though he may have
relatively full use of the premises during his visit(s) (Cowan (1994) 31 Cal.App.4th 795, 800;
Nadell (9th Cir. 2001) 268 F.3d 924, 928; see also Magee (2011) 194 Cal.App.4th 178-frequent guest who ran back into his friend's home for the purposes of evading police and
flushing narcotics down the toilet lacked standing to challenge entry of the residence or the
locked bathroom). Indeed, a person may even lack a reasonable expectation of privacy in his
own "home" if it consists of no more than a make-shift shelter located on public property that
the person is occupying without permission and in violation of the law. (Thomas (1995) 38
Cal.App.4th 1331--box made of wooden pallets and heavy cardboard, located on a sidewalk.)
On the other hand, even an owner who is absent at the time his home is searched has a
sufficient privacy interest to assert a knock/notice violation. (Hoag (2000) 83 Cal.App.4th
1198, 1201, 1206.) Likewise, an overnight guest has standing to question the entry or search
of his guestroom. (Olson (1990) 495 U.S. 91; Hamilton (1985) 168 Cal.App.3d 1058; but see
Armenta (9th Cir. 1995) 69 F.3d 304--"Armenta's bald assertion that he was an overnight
guest is not sufficient to establish that he had a legitimate expectation of privacy in the
house.") A juvenile who resides with a legal guardian may challenge the search of all areas of
the home. (Rudy F. (2004) 117 Cal.App.4th 1124, 1135.) A babysitter has standing in the
residence during the time he or she is sitting and while the owner is away. (Moreno (1992) 2
Cal.App.4th 577, 584-586.) So does a tenant who has not formally been evicted, even though
the landlord has gotten a restraining order to keep him away from the premises. (Thompson
(1996) 43 Cal.App.4th 1265, 1269.) A regular visitor who had a key to the home, the right to
be present when the owner was absent, authority to exclude others, and full run of the house
can challenge a search or entry. (Stewart (2003) 113 Cal.App.4th 242.)
When it comes to cars, the driver of a vehicle probably does have standing to attack the
validity of a trunk search, whereas a passenger normally does not. (Valdez (2004) 32 Cal.4th
73, 122; Nelson (1985) 166 Cal.App.3d 1209.) And while a passenger who is unconnected to
the possession or control of the vehicle does not have standing to challenge the search of that
vehicle, he does have standing to challenge his detention and the fruits of that detention
(which could have resulted in a search of the car). (Brewer (2017) 16 Cal.App.5th 1019.)
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A thief does not have standing to object to a seizure or search of the stolen goods. (Danielson
(1992) 3 Cal.4th 691, 708; Caymen (9th Cir. 2005) 404 F.3d 1196, 1200-1201--defendant
lacked standing to contest search of the hard drive on a computer obtained by using a fake
credit card.) For instance, if a car is stolen, neither the driver nor the passenger has standing
to challenge the police conduct. (Melnyk (1992) 4 Cal.App.4th 1532; Carter (2005) 36
Cal.4th 1114, 1141; Shepherd (1994) 23 Cal.App.4th 825--female lacked standing to contest
police search of purse she had left inside unattended stolen vehicle.) On the other hand, the
lessee of a rental car does have standing, even though the lease has expired and he is holding
over, at least where the rental company has not tried to regain control of the vehicle.
(Henderson (9th Cir. 2001) 241 F.3d 638, 647; see also Thomas (9th Cir. 2006) 447 F.3d
1191, 1199--unauthorized driver of rental car could have standing if he had authorized
driver's permission to use the car.)
For other cases, see Thompson (1988) 205 Cal.App.3d 1503--store clerk has no privacy in
floor area behind counter; Workman (1989) 209 Cal.App.3d 687--co-conspirators lacked
standing regarding fraudulent documents; Thompson (1990) 221 Cal.App.3d 923--stranger
who was alone in rear yard of residence lacks standing to object to police entry into the yard;
Roybal (1998) 19 Cal.4th 481, 507--no legitimate expectation of privacy concerning drugs
defendant put inside a white paper bag then wrapped with a clear plastic bag and placed in a
cinder block wall in his mother's backyard; Martins (1991) 228 Cal.App.3d 1632--person who
shipped suitcase 3,000 miles under someone else's name lacked standing to object to a
consensual search; Llamas (1991) 235 Cal.App.3d 441, 446--motel room occupant lacked
standing to contest consent to search from roommate illegally detained in a vehicle at the time
of the consent; McPeters (1992) 2 Cal.4th 1148, 1172--no standing to complain about seizure
of a gun from relative to whom defendant had voluntarily given it for safekeeping; Madrid
(1992) 7 Cal.App.4th 1888--no standing to challenge illegal search of a third party's vehicle
that procured evidence used to obtain a warrant to search defendant's residence; Gonzales (9th
Cir. 1992) 979 F.2d 711--no standing to contest warrantless search of a gym bag defendant
was sitting next to because he told the searching officer it did not belong to him; Scott (1993)
17 Cal.App.4th 405, 410--overnight guest in an apartment did not have a legitimate
expectation of privacy under an ottoman because he had disclaimed any interest in what was
underneath; Zermeno (9th Cir. 1995) 66 F.3d 1058, 1061-1062--no standing where defendant
failed to put on evidence to establish that he paid for, used, and maintained a "stash" house;
Sarkisian (9th Cir. 1999) 197 F.3d 966, 987--defendant who had authority to access a storage
rental room but did not use it lacked standing to challenge search; compare, Ybarra (1991)
233 Cal.App.3d 1353--defendant had standing to contest search of tool box seized from
friend's motel room to which defendant had key, where defendant had locked the box and
placed it in the room; Fultz (9th Cir. 1998) 146 F.3d 1102--homeless guest had privacy in
boxes of his belongings that were stored in a separate area of host's garage.
Note:
These cases make clear that you can greatly assist prosecutors by asking
questions in the field to establish the relationship between persons and relevant
objects, materials, and locations. (Dasilva (1989) 207 Cal.App.3d 43; Root
(1985) 172 Cal.App.3d 774.)
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2.4a
Regarding computer data, see Ziegler (9th Cir. 2006) 456 F.3d 1138--no reasonable
expectation of privacy in a work computer subject to monitoring, an Internet-use firewall, and
a prohibition against personal use; Forrester (9th Cir. 2008) 512 F.3d 500--e-mail and Internet
users have no expectation of privacy in messages to/from addresses or IP addresses of
websites they visit; Stipo (2011) 195 Cal.App.4th 664, 668--no reasonable expectation of
privacy in subscriber information provided to Internet service provider; Evensen (2016) 4
Cal.App.5th 1020--police could use RoundUp software to detect child pornography on a peerto-peer file-sharing network because persons using the network do not have a reasonable
expectation of privacy in their shared folders.
3.
"Good Faith"/Non-Culpable Conduct
Historically, if a search or seizure was illegal, the evidence was excluded and it made no
difference that the officer may have been acting in "good faith," for example, that she had a
warrant or was otherwise trying to follow the rules and did not intentionally violate the law.
In 1984, however, the Supreme Court created a "good faith" exception to the exclusionary
rule. (Leon (1984) 468 U.S. 897; Camarella (1991) 54 Cal.3d 592, 596.) The Court has since
broadened the Leon "good faith" exception to include non-culpable police conduct. (Herring
(2009) 555 U.S. 135; Davis (2011) 564 U.S. 229.)
In evaluating a Leon "good faith" claim, the courts will look to whether a "reasonably well
trained officer would have known that the search was illegal" in light of all the circumstances.
(Leon (1984) 468 U.S. 897, 922, fn. 23.) This does not mean that the officer's subjective
belief is a consideration. The inquiry looks to the objective facts only, which can include a
particular officer's knowledge and experience but not the officer's subjective intent or belief.
(Herring (2009) 555 U.S. 135.)
For example, the exception has been applied (i.e., the evidence was not suppressed) where a
judge issued a flawed search warrant (Leon (1984) 468 U.S. 897; Sheppard (1984) 468 U.S.
981, 990-991) or where a clerk failed to notify police that an arrest warrant had been recalled
(Evans (1995) 514 U.S. 1). (See also Fleming (1994) 22 Cal.App.4th 1566--erroneous
probation search condition; Barbarick (1985) 168 Cal.App.3d 731, 739; Fortune (1988) 197
Cal.App.3d 941; Downing (1995) 33 Cal.App.4th 1641--erroneous computer data entered by
court personnel indicated suspect was still on searchable probation.)
Leon was also applied in a case involving a warrantless search pursuant to a search condition
erroneously imposed following a grant of diversion. The searching officer did not know that
the condition was invalid. While officers "must act in objective good faith and have a
reasonable knowledge of what the law prohibits," the officer's search conducted in reliance on
the condition was reasonable. (Fleming (1994) 22 Cal.App.4th 1566, 1573; Leon, 468 U.S.
897, 920, fn. 20.)
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The exception was not applied in Ferguson (2003) 109 Cal.App.4th 367 because a probation
department's clerk erroneously failed to remove defendant from the active probation status
data base and the state court of appeal found the probation staff to be adjuncts to law
enforcement. (But see Arron C. (1997) 59 Cal.App.4th 1365--suppression of evidence not
required following search of minor's residence based on erroneous information from a
supervising probation officer because the P.O. did not initiate, encourage, or participate in the
search and was not an "adjunct to the law enforcement team.")
However, this "adjunct test" may no longer be valid following the U.S. Supreme Court
decision in Herring (2009) 555 U.S. 135. In Herring, the Court made clear that the
exclusionary rule was not meant to remedy mere negligence but required culpable conduct on
the part of law enforcement. The purpose of the exclusionary rule is "to deter deliberate,
reckless, or grossly negligent conduct, or in some circumstances recurring or systemic
negligence." When the error arises from "nonrecurring and attenuated negligence," the
exclusionary rule should not apply.
Example:
Herring was arrested by a Coffee County Sherriff's investigator after returning to his
impounded truck. The investigator had asked his warrants clerk to check with
neighboring Dale County to see if Herring had any outstanding warrants. The clerk
checked the Dale County computer base and found an active arrest warrant for
Herring's failure to appear on a felony; she advised the investigator of the warrant and
asked Dale County to fax her a copy of the warrant. The investigator arrested Herring
for the FTA outside the impound lot and found narcotics and a pistol in a search
incident to arrest. Meanwhile, the Dale County clerk learned that the computer system
was not correct and that the warrant had been recalled five months earlier. She
notified the Coffee warrants clerk of the error, but Herring had already been arrested
and searched. HELD: The exclusionary rule did not apply. The error in this case was
attributable to negligent recordkeeping. If the police had been shown to be reckless in
maintaining a warrant system or made false entries to procure false arrests, such
culpable conduct would require exclusion. Negligent error by neighboring county's
record-keepers did not. (Herring (2009) 555 U.S. 135.)
Following Herring, the exclusionary rule will not apply when an erroneous search or seizure
is the result of mere "negligence." For example, evidence was not excluded following a
mistaken collection of a DNA sample where the mistake was not sufficiently deliberate so
that exclusion would meaningfully deter "culpable" conduct. (Robinson (2010) 47 Cal.4th
1104.)
The exclusionary rule also will not apply when officers rely on a subsequently invalidated
statute (Krull (1987) 480 U.S. 340, 349-350) or binding Supreme Court case law that is later
revised by the Court (Davis (2011) 564 U.S. 229).
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Example:
2.5
Relying on Belton, officers searched a car incident to the occupants' arrest. The
search was conducted in April 2007, two years before Belton was replaced by the new
rule in Gant (2009) 556 U.S. 332 disapproving unjustified vehicle searches incident to
arrest. HELD: The exclusionary rule did not apply to officers' reasonable reliance on
law that had been binding for 28 years because "suppression would do nothing to deter
police misconduct in these circumstances, and because it would come at a high cost to
both the truth and the public safety." (Davis (2011) 131 S.Ct. 2419.)
In contrast, evidence will be excluded if officers' conduct is based on a mistake of law that is
unreasonable.
Example:
Officer's arrest of minor at 5:45 a.m. was illegal because officer thought curfew
ordinance covered hours of 10 p.m. to 6 a.m., but actual hours were 10 p.m. to 5 a.m.
(Arthur J. (1987) 193 Cal.App.3d 781, 787.)
Example:
It was not a reasonable mistake of law for an officer to apply the "open container" law
(Veh. Code, § 23223) to an individual sitting in a car that was parked in the parking
lot of a public park absent evidence of driving with the open container. (Lopez (1987)
197 Cal.App.3d 93, 101; compare Souza (1993) 15 Cal.App.4th 1646, 1653--officer's
mistake regarding Veh. Code, § 23225 open container law would have been
"objectively reasonable.")
If a mistake of law is objectively reasonable, then the law enforcement action does not violate
the Fourth Amendment, which prohibits only unreasonable search and seizure. (Heien (2014)
135 U.S. 530.) The exclusionary rule does not come into play because reasonable police
conduct, if based on an objectively reasonable mistake of law, does not amount to a Fourth
Amendment violation in the first place.
Example:
C.
It was a reasonable mistake of law, and thus not an unreasonable detention, when a
driver was stopped for having only one operable brake light. The law in North
Carolina regarding operable brake lights was ambiguous, and it was not an
unreasonable mistake of law to initiate a detention based on what was a reasonable
interpretation of the statute. The stop did not violate the Fourth Amendment. (Heien
(2014) 135 S.Ct. 530; accord, Campuzano (2015) 237 Cal.App.4th Supp. 14-detention of bicyclist for violating ambiguous city ordinance.)
Warrantless Searches and Seizures - General Considerations
Under the Constitution, warrantless searches and seizures are presumptively illegal. They
will be upheld only if the prosecutor can prove that the police conduct came within one of the
few "carefully circumscribed and jealously guarded" exceptions to the warrant requirement or
was based on valid consent. (Katz (1967) 389 U.S. 347, 357; Acevedo (1991) 500 U.S. 565;
Schneckloth (1973) 412 U.S. 218, 219.) The exceptions are discussed at length in this
chapter and in Chapters 3 (residences) and 4 (vehicles).
You should read all three chapters to gain a better understanding of how and when exceptions
can apply.
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II.
SEARCH AND SEIZURE - PERSONS
CONSENSUAL ENCOUNTERS
When you deal with a member of the public, the law will classify it as either a "consensual
encounter," a "detention," or an "arrest." A "consensual encounter" is the least intrusive of
these. (Royer (1983) 460 U.S. 491, 497-499, 506; Hughes (2002) 27 Cal.4th 287, 327-328;
Manuel G. (1997) 16 Cal.4th 805, 821.)
A.
Definition
A "consensual encounter" is a contact between an officer and an individual that is strictly
voluntary. The key element is that the person remains totally free to leave or not cooperate.
(Mendenhall (1980) 446 U.S. 544, 554; Bennett (1998) 68 Cal.App.4th 396, 402.) You must
not restrain the person or exert any authority. (Castaneda (1995) 35 Cal.App.4th 1222, 1227;
Christopher B. (1990) 219 Cal.App.3d 455.) You do not need any objective reason or
justification for initiating this type of contact. (Hughes (2002) 27 Cal.4th 287, 327; Manuel
G. (1997) 16 Cal.4th 805, 821.)
B.
Contacts/Requesting Identification
Merely approaching someone is not a "detention." (Bostick (1991) 501 U.S. 429, 434; Royer
(1983) 460 U.S. 491, 497; Mendenhall (1980) 446 U.S. 544, 553; Hughes (2002) 27 Cal.4th
287, 328; Manuel G. (1997) 16 Cal.4th 805, 821.) "No Fourth Amendment privacy interests
are invaded when an officer seeks a consensual interview with a suspect." (Coddington
(2000) 23 Cal.4th 529, 581.) Consensual encounters, therefore, do not require articulable
suspicion of criminal activity. (Rivera (2007) 41 Cal.4th 304.)
This means that a peace officer may approach an individual in a public place, identify herself
as a law enforcement officer, and, in a non-coercive manner, ask the individual a few
questions without reasonable suspicion. (Brown (2015) 61 Cal.4th 968, 974; Castaneda
(1995) 35 Cal.App.4th 1222, 1227.) Because an officer on duty is likely to be in uniform,
display a badge, and carry a weapon, those factors are generally irrelevant to determining the
nature of a contact. (See Zamudio (2008) 43 Cal.4th 327.) The officer's uncommunicated
state of mind, and the individual citizen's subjective belief, are irrelevant in determining
whether a "detention" has occurred. (Manuel G. (1997) 16 Cal.4th 805, 821; Christopher B.
(1990) 219 Cal.App.3d 455, 460.) "As long as a reasonable person would feel free to
disregard the police and go about his or her business, the encounter is consensual and no
reasonable suspicion is required on the part of the officer." (Terrell (1999) 69 Cal.App.4th
1246, 1253.)
Example:
It was only a consensual encounter, not a detention, when the officer asked "Can I talk
to you for a moment?" and the individual said "yes" and then agreed to wait in the
back of a police car while the officer ran a warrants check, when everything was
spoken in a polite conversational tone without physical or verbal force. (Bennett
(1998) 68 Cal.App.4th 396, 402; see Orman (9th Cir. 2007) 486 F.3d 1170, 1175-consensual encounter in shopping mall.)
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2.6a
Example:
An officer patrolling a parking lot for narcotics traffickers saw Lopez sitting on the
hood of a car. The officer asked if it was his car, and Lopez said, "No." When asked
why he was sitting there, Lopez said he was waiting for his friends to play pool. The
officer asked where his pool stick was, and Lopez did not reply. The officer asked if
Lopez had any identification. Lopez reached into his pocket, took out his wallet, and
handed it to the officer, who opened it, causing a bindle of cocaine to fall out.
Because the questioning was not accusatory and there was no show of force, the court
found no detention. (Lopez (1989) 212 Cal.App.3d 289, 293.)
Example:
Officer approached a man near a dumpster in an alley known for dope-dealing, asked
if they could talk, then proceeded to obtain general information (name, DOB, prior
arrest history), started filling out a field identification card, and even ran a records
check, making small talk until the results came back showing an outstanding arrest
warrant. HELD: It was only a consensual encounter, not a detention, because the
suspect was free to terminate the encounter. The officer did not order him to do
anything or to turn anything over to him to hold while the records check was being
completed, nor did the officer draw his weapon, make any threatening gestures, or
utilize his patrol lights or sirens. (Bouser (1994) 26 Cal.App.4th 1280.)
Example:
After observing somewhat suspicious conduct by a would-be passenger at an airport,
the undercover officer asked the suspect if she would mind answering some questions.
Suspect said she did not want to miss her flight (leaving shortly), so they walked along
together. The officer obtained information that eventually led to the discovery of
narcotics at the destination airport. The court found no detention, only a consensual
encounter. (Denman (1980) 112 Cal.App.3d 1003, 1009.)
Example:
It was not a detention when officers asked defendant and members of his family to go
to the police station to be interviewed as potential witnesses in a homicide
investigation. Defendant voluntarily accompanied the officers and voluntarily gave
them his shoes after their interview. There "was no threat or application of force, no
intimidating movement, no brandishing of weapons, no blocking of exits, and no
command associated with the officers' request that defendant come to the police
station." (Zamudio (2008) 43 Cal.4th 327; Kopatz (2015) 61 Cal.4th 62 [same].)
Example:
It was a consensual encounter, and not a detention, when officers contacted two males
sitting on a bench in a park, asked for and checked the identification of the one who
appeared to be under the influence of narcotics, and did nothing by words or conduct
to indicate that he was not free to leave. (Terrell (1999) 69 Cal.App.4th 1246.)
Unlike the above examples, pulling up by a parked car in a manner that blocks its only
departure route is a detention. (Wilkins (1986) 186 Cal.App.3d 804.) Activating your
emergency lights (red and blue) as you pull up by a parked car also may result in a detention
(assuming the person does not flee). (Brown (2015) 71 Cal.4th 968, 980; Bailey (1985) 176
Cal.App.3d 402.)
Example:
Officer who was investigating 9-1-1 call activated the patrol car emergency lights and
pulled up behind a parked car that he had earlier seen leaving the scene. It was a
detention because the driver stayed in the car. (Brown (2015) 71 Cal.4th 968.)
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However, if you pull up by a parked car and leave it room to drive away and do not use
emergency lights, there is no detention, even if you direct your highbeams and white spotlight
into the passenger compartment. (Perez (1989) 211 Cal.App.3d 1492, 1496.) Shining a
spotlight on someone and asking him to remove his hands from his pockets does not convert a
consensual encounter into a detention. (Franklin (1987) 192 Cal.App.3d 935, 940-941; Frank
V. (1991) 233 Cal.App.3d 1232, 1239--order to remove hands; but see Garry (2007) 156
Cal.App.4th 1100, 1112--spotlight combined with "rushing at" someone and asking if he is on
probation or parole was a detention.) Merely asking if the person will step to the side and talk
to you is a consensual encounter. (Rodriguez (1984) 469 U.S. 1, 5-6; Bennett (1998) 68
Cal.App.4th 396, 402; Derello (1989) 211 Cal.App.3d 414, 426-427.)
The exact words you use, and even your tone of voice, are extremely important to a court that
is trying to decide if the contact was voluntary or not. (Ross (1990) 217 Cal.App.3d 879,
884-885; Frank V. (1991) 233 Cal.App.3d 1232, 1239--manner and mode of questioning can
be critical.) You must avoid sending any message that compliance with your requests is
mandatory or required. (Bostick (1991) 501 U.S. 429, 437; Manuel G. (1997) 16 Cal.4th 805,
821; Terrell (1999) 69 Cal.App.4th 1246, 1254.) Therefore, it is always a good idea to ask for
the person's cooperation rather than to demand it.
Example:
Officer stopped a woman at an airport, said he was investigating drug-trafficking and
that he only talked to possible suspects. However, he also told her she was not under
arrest, did not have to talk to him, and was free to leave. HELD: This was a
consensual encounter, not a detention. (Daugherty (1996) 50 Cal.App.4th 275.)
On the other hand, if you start asserting authority over the person--for example, by giving
orders, demanding answers, displaying a weapon, using a harsh tone, telling him to stop doing
X or to move to some other location, etc.--the contact will be viewed as a detention and it will
be unlawful unless supported by "reasonable suspicion." (Manuel G. (1997) 16 Cal.4th 805,
821; Terrell (1999) 69 Cal.App.4th 1246, 1254.)
Example:
Officer saw currency change hands in a group of three men standing near a corner in a
high-narcotics area. Wanting to make a field contact, the officer parked diagonally
against the traffic about 10 feet behind the group. When Jones started to walk away,
the officer asked him to stop. When Jones started to reach for his pocket, the officer
intervened and discovered narcotics. HELD: The way the officer suddenly drove up,
left his car parked, and hailed Jones was a detention. Jones' receipt of money from
someone in area known for drug activity did not justify a detention. (Jones (1991) 228
Cal.App.3d 519.)
Example:
What began as a consensual encounter turned into a detention when, after a request for
identification and a consensual search, an officer asked two brothers "if they would be
willing to have a seat on the curb." J.G. was 15 years old, the officer had "conveyed"
that he suspected the brothers of unlawful activity, and four officers were on the scene
by the time the request to sit on the curb occurred. A reasonable person would not
have felt free to refuse the request. (In re J.G. (2014) 228 Cal.App.4th 402; compare
Parrott (2017) 10 Cal.App.5th 485--asking someone to step onto the sidewalk for
safety while continuing a conversation did not amount to a detention.)
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2.6c
Example:
Officers observed the defendant walking through a shopping center at 1:20 a.m. when
all the stores were closed. They shined a spotlight on him and got out of their car, and
one officer said, "Come over here. I want to talk to you." HELD: It was a detention
because the "command" and the other circumstances would make the suspect believe
he was not free to leave. And without some indication of criminal activity, just
walking through a closed shopping center in the early morning hours did not
constitute reasonable suspicion. (Roth (1990) 219 Cal.App.3d 211, 215.)
Example:
Officer was patrolling a high-crime, high-drug area of Vallejo after 11 p.m. when he
observed defendant standing next to a parked car. The officer stopped the patrol car
about 35 feet away and turned on the patrol car spotlight to illuminate defendant.
Defendant appeared to be nervous, and the officer walked "briskly" toward him.
Officer could see defendant look shocked and nervous and start walking backwards.
Defendant said, "I live right there," and pointed to a nearby house. Officer said,
"Okay, I just want to confirm that," and asked defendant if he was on probation or
parole. Defendant said he was on parole. HELD: The combination of the spotlight
and the officer "rushing at" defendant and asking about his "legal status" amounted to
an unlawful detention. (Garry (2007) 156 Cal.App.4th 1100.)
1.
Requests for Identification
The law is clear that questions regarding identity and a request for identification are allowed
during a consensual contact. (Hiibel (2004) 542 U.S. 177, 185 ["a police officer is free to ask
a person for identification without implicating the Fourth Amendment"]; Delgado (1984) 466
U.S. 210, 216 ["interrogation relating to one's identity or a request for identification by the
police does not, by itself, constitute a Fourth Amendment seizure"]; Castaneda (1995) 35
Cal.App.4th 1222, 1227; Diaz-Castaneda (9th Cir. 2007) 494 F.3d 1146, 1152.) Less clear is
whether holding onto identification converts the contact into a detention.
In Castaneda (1995) 35 Cal.App.4th 1222, the court found it was a detention because a
reasonable person would not have felt free to leave after handing over his identification. In
Leath (2013) 217 Cal.App.4th 344, an officer investigating a recent robbery asked Leath his
name and if he had any identification, at which point Leath handed over his identification
card. The court found that voluntarily handing over identification did not convert the
encounter into a detention because the individual was free to request that his identification be
returned and to leave the scene. The court found it significant that the officer asked for, rather
than demanded, identification. Landing somewhere between Castaneda and Leath, the court
in Linn (2015) 241 Cal.App.4th 46 ruled that taking a voluntarily offered license is one factor
to be considered in deciding whether a detention has occurred, although it is not definitive.
Example:
Motorcycle officer observed defendant's passenger flick cigarette ash out the window
in violation of the Vehicle Code. Defendant parked in a stall, and the officer parked
about three feet from the driver's door as defendant and the passenger got out. He
spoke with the passenger about the cigarette, then spoke with defendant about the
violation, asked for her license, and directed her to put down her soda can and put out
her cigarette. He held onto the license for a records check. Despite the officer being
cordial, friendly, and smiling, it was a detention. (Linn (2015) 241 Cal.App.4th 46.)
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2.
SEARCH AND SEIZURE - PERSONS
"Knock and Talk"
A "knock and talk" is a consensual encounter that takes place at the doorway of a home.
Unlike a detention, a "knock and talk" does not implicate the Fourth Amendment. (Rivera
(2007) 41 Cal.4th 304.)
A true "knock and talk"--that is, a situation where you knock on the door politely at a
reasonable hour, or at least when it appears that someone is awake and about inside, without
any type of badgering or compulsion--does not require any reasonable suspicion. (Jenkins
(2004) 119 Cal.App.4th 386; Colt (2004) 118 Cal.App.4th 1404--okay for officers to stand to
the side of the door to conceal themselves.) A "knock and talk" can also occur when an
officer enters the curtilage to initiate a consensual conversation. (Perea-Ray (9th Cir. 2012)
680 F.3d 1179, 1189.)
If the contact remains a consensual encounter, officers may request permission to enter or
search the residence. "The sanctity of the home is not threatened when police approach,
converse with the homeowner, and properly obtain consent to search." (Rivera (2007) 41
Cal.4th 304.)
Persistent loud knocking, a demand to open the door, or any other coercive circumstance can
turn a "knock and talk" consensual encounter into a detention or even into a search, requiring
a warrant or probable cause. (See Cormier (9th Cir. 2000) 220 F.3d 1103, 1108-1109; Bailey
(9th Cir. 2001) 263 F.3d 1022, 1029-1030; see also Lundin (9th Cir. 2016) 917 F.3d 1151
[knocking on front door at 4:00 a.m. to arrest resident did not qualify as a "knock and talk"].)
The Supreme Court has not decided whether officers may conduct a "knock and talk" at any
entrance that is open to visitors or whether officers are restricted to approaching the front
door. (Carroll v. Carman (2014) 135 S.Ct. 348.)
C.
Searches and Seizures During Consensual Encounters
You may ask for permission to conduct a search during a consensual encounter. (Rivera
(2007) 41 Cal.4th 304.) However, you have no authority to conduct a search during a
consensual encounter unless, of course, the person gives you voluntary consent or is subject
to a search clause.
A nonconsensual search requires "probable cause." And even a limited search for weapons (a
patdown or frisk)--which will turn the consensual encounter into a detention (Frank V. (1991)
233 Cal.App.3d 1232, 1240, fn. 3)--is not legal unless you have specific facts or information
making it reasonable for you to suspect that the person may be armed or dangerous. (Terry
(1968) 392 U.S. 1; see Ch. 2-III-J, "Searches During Detentions.")
On the other hand, if you see contraband in plain view, you have the right to seize it and, if it
provides probable cause, to arrest the person. (Sanchez (1987) 195 Cal.App.3d 42, 48; Holt
(1989) 212 Cal.App.3d 1200.) And, of course, once you have probable cause to make a
custodial arrest, it justifies a full search of the person incident to the arrest. (Valdez (1987)
196 Cal.App.3d 799, 805.)
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D.
2.6e
Officer Safety
You may always do whatever is reasonable to protect yourself, even during a consensual
encounter. Indeed, even ordering a person (as opposed to requesting him) to keep his hands
in sight or to remove them from his pockets will not necessarily convert a consensual
encounter into a detention, although it may. (Parrott (2017) 10 Cal.App.5th 485; Frank V.
(1991) 233 Cal.App.3d 1232, 1239.)
Example:
An officer approached a man who he thought, based on an anonymous telephone tip,
might be dealing drugs. As the officer identified himself, the man reached into his
pants pocket where the officer had noticed a 1-1/2-inch bulge. Fearing that the man
was reaching for a weapon, the officer grabbed the man's wrist and pulled his hand out
of the pocket, causing him to drop a package of heroin. The court upheld the officer's
actions because either (1) they were necessary to ensure his safety or (2) the man's
movement provided a basis, as of that moment, to detain him and check for weapons.
(Rosales (1989) 211 Cal.App.3d 325, 330-331; see also Lee (1987) 194 Cal.App.3d
975, 983.)
Example:
Officer could order motorcycle passenger to remove his hands from a bulky jacket
without necessarily converting the consensual encounter into a detention. (Frank V.
(1991) 233 Cal.App.3d 1232, 1239.)
Example:
Officers stopped to help a driver with a disabled car. The driver, who wore a hooded
sweatshirt with a heavy item bulging out of the front pocket, appeared nervous and
continued to touch whatever was in his pocket. Based on concern that the item might
be a weapon, one officer asked the driver to stop reaching into the sweatshirt. HELD:
The request did not turn the consensual encounter into a detention. Asking someone
to keep his hands out of his pockets under these circumstances "is a normal, expected
response to an officer's concern for his or her own personal safety during the
encounter." (Parrott (2017) 10 Cal.App.5th 485.)
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Example:
2.7
An officer saw a group of five or six people standing in front of an apartment complex
and recognized two of them as residents. As the officer approached, they all walked
away, except Ross. The officer asked Ross to come over and talk to him and to
identify herself, which she did. He asked her for confirming identification and asked
her, for his own safety, to remove her hands from her pockets, which she did,
discarding some cocaine in the process. Because everything was done by request, it
was a consensual encounter, not a detention. (Ross (1990) 217 Cal.App.3d 879.)
Keep in mind, even if your actions turn what started as a consensual encounter into a
detention, the detention will be lawful if the individual's conduct "created an appearance of
potential danger" and you can sufficiently articulate the basis for believing that a temporary
detention/patsearch was needed to protect your safety. (Mendoza (2011) 52 Cal.4th 1056,
1081; Rosales (1989) 211 Cal.App.3d 325, 330.)
III.
DETENTIONS/STOPS
A.
Definition and Purpose
A temporary "detention" or "stop" is an exertion of authority that is something less than a fullblown arrest but more substantial than a simple "contact" or "consensual encounter."
A "detention" occurs whenever a reasonable person would believe he is not free to leave or
otherwise disregard the police and go about his business. (Hodari D. (1991) 499 U.S. 621,
627-628; Bostick (1991) 501 U.S. 429, 434; Brown (2015) 61 Cal.4th 968, 974.) Such a
belief may result from physical restraint, unequivocal verbal commands, or words or conduct
by you that clearly relate to the investigation of specific criminal acts. (Brueckner (1990) 223
Cal.App.3d 1500, 1505.) For instance, patting-down someone constitutes a detention (Frank
V. (1991) 233 Cal.App.3d 1232, 1240), as does the statement "I am going to patsearch you"
(Lindsey (2007) 148 Cal.App.4th 1390, 1394-1395, fns. 3 & 4). However, "official scrutiny"
directed at an individual--such as the use of high beams and spotlights--does not, in itself,
amount to a detention. (Perez (1989) 211 Cal.App.3d 1492, 1496.)
Note:
The First District Court of Appeal has held that the use of a patrol spotlight
combined with the officer "rushing at" a person on the street and asking about
the person's "legal status" (if he was on probation or parole) amounted to a
detention. (Garry (2007) 156 Cal.App.4th 1100, 1112.)
Before a "detention" exists in the law, it is necessary that the person actually submits to your
assertion of authority. If the person runs away, there has been no detention and none occurs
until and unless you actually effect a stop. (Hodari D. (1991) 499 U.S. 621, 626; Brower
(1989) 489 U.S. 593, 597; Green (1994) 25 Cal.App.4th 1107, 1110; Foranyic (1998) 64
Cal.App.4th 186, 188.)
In other words, "a person is not 'seized' within the meaning of the Fourth Amendment unless
he or she is somehow physically restrained or voluntarily submits to a peace officer's
authority." (Arangure (1991) 230 Cal.App.3d 1302, 1307; Hodari D. (1991) 499 U.S. 621,
626; Turner (1994) 8 Cal.4th 137, 180.)
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The purpose of a detention is to resolve whether suspicious behavior is "innocent" or relates
to crime. Therefore, "[t]he possibility of an innocent explanation does not deprive the officer
of the capacity to entertain a reasonable suspicion of criminal activity." (Tony C. (1978) 21
Cal.3d 888, 894; Navarette (2014) 134 U.S. 1683; Letner (2010) 50 Cal.4th 99, 146.)
Detention law "accepts the risk that officers may stop innocent people." (Wardlow (2000)
528 U.S. 119, 126.) If during a detention "the officer does not learn facts rising to the level of
probable cause, the individual must be allowed to go on his way." (Wardlow (2000) 528 U.S.
119, 126.)
Additionally, a person who is lawfully detained has "no constitutional right to destroy or
dispose of evidence." (Bracamonte (1975) 15 Cal.3d 394, 405, fn. 6; Quick (2016) 5
Cal.App.5th 1006, 1008.)
B.
Reasonable Suspicion
For an investigative stop or detention to be valid, you must have "reasonable suspicion" that:
(1) criminal activity may be afoot and (2) the person you are about to detain is connected with
that possible criminal activity. (Wardlow (2000) 528 U.S. 119; Ornelas (1996) 517 U.S. 690,
695-696; Sokolow (1989) 490 U.S. 1, 7-8; Brown (2015) 61 Cal.4th 968, 982.)
To establish "reasonable suspicion," both the quality and quantity of the information you need
is considerably less than the "probable cause" you need to arrest or search. (White (1990) 496
U.S. 325, 330; Bennett (1998) 17 Cal.4th 373, 387.) "'[R]easonable suspicion' is a less
demanding standard than probable cause and requires a showing considerably less than
preponderance of the evidence. . . ." (Wardlow (2000) 528 U.S. 119, 123; Arvizu (2002) 534
U.S. 266, 274.)
"Reasonable suspicion" is evaluated based on objective facts. Your subjective thinking, i.e.,
the purpose behind your search or seizure (detention or arrest), should have no bearing on a
court's determination of the legality of your action. Your "subjective intentions" are
irrelevant in determining whether a detention or an arrest was justified. (See Sullivan (2001)
532 U.S. 769, 772; Whren (1996) 517 U.S. 806, 813; see also Robinette (1996) 519 U.S. 33,
38; Scott (1978) 436 U.S. 128, 138; Letner (2010) 50 Cal.4th 99, 145.)
For example, even if you rely on the wrong statute in detaining a suspect, your actions are not
unlawful if the suspect's actions were prohibited under a different statute. (McDonald (2006)
137 Cal.App.4th 521, 530; Justin K. (2002) 98 Cal.App.4th 695, 700 [detention based on the
wrong statute is not unlawful if there is a "right" statute that applies to suspect's conduct].) If
the suspect's actions were not prohibited under any statute, then a detention will be unlawful.
(See Strider (2009) 177 Cal.App.4th 1393 [officer could not detain suspect to investigate a
violation of former Pen. Code, § 12031, subd. (a), for carrying a loaded firearm in a public
place because a front yard surrounded by wrought iron and wood-and-brick fences was not a
"public place"]; Krohn (2007) 149 Cal.App.4th 1294 [the courtyard of a gated apartment
complex was not a "public place" for purposes of municipal code prohibition against drinking
alcohol in a public place].)
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Example:
2.9
Officer detained defendant for "littering" after observing him urinate in the empty
parking lot of a Berkeley restaurant at 11:23 in the morning. Although defendant's
conduct did not fall within the definition of littering under Penal Code section 374.4,
subdivision (b), he did create a public nuisance in violation of section 370. Because
defendant committed a violation of state law, the fact that the officer's subjective
intention was to investigate a different statute was irrelevant. (McDonald (2006) 137
Cal.App.4th 521, 528.)
It is important to remember that a detention can never be based solely on a hunch, rumor,
intuition, instinct, or curiosity. (Wardlow (2000) 528 U.S. 119, 123-124; Tony C. (1978) 21
Cal.3d 888.) You must have specific facts justifying your suspicion, and you must be able to
articulate these to a court. The court will then decide if these facts--based on the "totality of
circumstances" including your training and experience--were enough to make your suspicion
objectively reasonable. (Wright (1988) 206 Cal.App.3d 1107; Lloyd (1992) 4 Cal.App.4th
724, 733.) And, remember, you should be sure to articulate any specialized training or
experience that would allow inferences and deductions that "might well elude an untrained
person." (Arvizu (2002) 534 U.S. 266, 273.)
Examples: Unlawful Detention
Example:
Two city police detectives were assigned to the gang unit, which maintained a
photographic file of known gang members and associates. One day they saw five
males on known gang "turf," wearing gang clothing, standing together in front of an
apartment where gang members often gathered, talking and socializing. The officers
detained them (by ordering them to "stay there"), patted them down, ordered them to
sit, interviewed each one individually, and photographed them. The entire process
took 15 to 20 minutes. HELD: Although the department's policy of stopping,
interviewing, and photographing possible gang members for future use was
"laudable," it was illegal. Public concern and outrage over crime and violence caused
by gangs is not a sufficient reason to justify a detention without a specific basis for
believing the individual is involved in criminal activity. (Rodriguez (1993) 21
Cal.App.4th 232, 238-240.)
Example:
A BOLO for two adult Black male suspects involved in a sexual battery at a light rail
station in San Jose included several poor quality surveillance photographs of the
suspects and an indication, from a statement by one of the men, that they were
regulars in the area. Seven days after the assault, a deputy noticed a passenger on the
train who, he said, resembled one of the suspects in terms of height, weight, age,
hairline, and the shape of his nose. The deputy approached and asked for proof of
fare. Although the passenger had a fare sticker, he misidentified himself, leading to an
arrest for a violation of Penal Code section 148.9 and a search incident to that arrest
that yielded narcotics. HELD: The detention was not justified based upon the
deputy's right to check if a light rail passenger had paid his fare, which the court of
appeal categorized as a "ruse." The physical similarities between the passenger and
the suspects in the assault also were not objectively sufficient to justify a detention
related to the assault. (Walker (2012) 210 Cal.App.4th 1372.)
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Example:
A college student reported that unknown "Mexican gang members" had telephoned
threats that they would go to his on-campus apartment at 6:00 the next morning. Four
mornings later, based on a "gut feeling," an officer who had reviewed the report
stopped a car after observing two young Hispanic males look several times at the
student's apartment building and drive "too" cautiously for the three miles the officer
followed them. HELD: The articulable facts fell short of reasonable suspicion.
(Durazo (2004) 124 Cal.App.4th 728.)
Example:
Anaheim police officers lacked a sufficient basis to detain defendant outside a 7Eleven based on recent robberies at other Anaheim 7-Eleven stores, the location of the
store in a high-crime area, and the fact that defendant has been sitting in a parked car
near the street exit with the engine idling. When the officers approached defendant's
car, they heard fumbling and a thud and defendant tried to avoid contact with them.
The appellate court would not uphold a detention and patdown search based on such
"thin and nonspecific" facts. (Perrusquia (2007) 150 Cal.App.4th 228; see Casares
(2016) 62 Cal.4th 808, 838 [defendant's "mere presence in a car legally parked on the
less illuminated north side of the convenience store, in an area without demarcated
parking spaces at a time when other parking spaces were available, did not justify his
detention"].)
Example:
Officers saw two men walk away from each other in an alley in an area with a lot of
drug trafficking. They believed the men would have met each other if the police had
not been there. This "looked suspicious" to the officers, so they stopped one of the
men and asked for identification. When he refused, they arrested him. The court held
that the fact that the men were in a neighborhood frequented by drug users was not
enough for reasonable suspicion. Therefore, the detention was unlawful. (Brown
(1979) 443 U.S. 47; but see Limon (1993) 17 Cal.App.4th 524, 531-534.)
Example:
Riverside police saw a man in a front driveway stripping copper wire from an air
conditioning unit. The man said he was there visiting his friend "Rick" and that the air
conditioner was broken. He did not know Rick's last name, and he admitted to being
on probation for a narcotics offense. An officer approached a partially open side door
to the house, leaned inside, identified himself as police, and commanded anyone
inside to come to the door. Defendant, who turned out to be Rick, walked out of a
bedroom and followed the officer's instructions to turn around and walk backwards
out of the house. HELD: The detention in the home was unlawful. The officers
lacked specific, articulable facts suggesting that defendant might be engaged in
criminal activity. Taking a very narrow view of the facts, the court found that the
officers could not have reasonably concluded that a burglary was in progress. (Lujano
(2014) 229 Cal.App.4th 175.)
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2.10a
Examples: Lawful Detention
Example:
Officers saw two males loading a TV into the trunk of a car at 7:30 p.m. when most
nearby businesses were closed. There were no television shops nearby, and the
neighborhood had been plagued by burglaries. When they saw the officers, the men
looked "shocked," slammed down the trunk lid, and walked swiftly toward a bar.
They ignored the officers' requests to talk and had to be forcibly detained. The court
ruled there were enough specific facts to make the detention valid. (Garcia (1981) 121
Cal.App.3d 239.)
Example:
An officer who was validly inside a motel room and saw what he thought might be an
illegal drug in a syringe, together with a known "cutting" agent, had a basis to detain
the occupants. (Wright (1988) 206 Cal.App.3d 1107.)
Example:
Officers observed the defendant standing in front of a dance hall and liquor store,
showing something in a partially rolled-down paper bag to a group of others gathered
around him. As the officers approached in a marked car, someone yelled "Rollers!"
and the group dispersed. When the officers drove by again a few minutes later, the
defendant was outside again but ran back into the dance hall. They chased him and
ordered him to stop. The court held that these circumstances--given this day and age
when traffic in illegal drugs is endemic to our society--provided a valid basis to detain.
(Brown (1990) 216 Cal.App.3d 1442; see Lee (1987) 194 Cal.App.3d 975, 982.)
Example:
Detention of a male as a suspected truant was legal given that he had a youthful
appearance, was carrying a backpack, and was walking several miles from the nearest
high school during school hours. (Humberto O. (2000) 80 Cal.App.4th 237, 242; see
also James D. (1987) 43 Cal.3d 903, 917.)
Note:
Example:
In Humberto O., the court went on to hold that it was proper for the police,
who were going to return the minor to his school, to conduct a full search of
him and the property under his control (i.e., the backpack) incident to his
custodial "arrest."
It was valid for DEA agents to detain an individual at the Seattle airport because (1)
he was a young, African-American male wearing a blue jacket, the favorite color of
one Los Angeles gang; (2) he was arriving from Los Angeles, a city known to supply
cocaine to Seattle; (3) he traveled on an airline favored by gang members transporting
drugs; (4) he continually glanced around the terminal quickly and furtively; (5) he
carried only a plastic shoe bag for a three-day stay; (6) he gave one agent a "hard
look" and turned completely around on the escalator to look at persons behind him; (7)
he passed through baggage claim without claiming luggage; (8) he had no
identification and could not name anyone in Seattle to verify his identity; and (9) he
could not explain his presence in the city. (Malone (9th Cir. 1989) 886 F.2d 1162; see
also Daugherty (1996) 50 Cal.App.4th 275, 286-287.)
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Example:
Defendant was standing by the open trunk of a Lexus holding loose wiring. He
quickly closed the trunk and walked away from the car when he saw the approaching
police car, appearing "real nervous." Another person ran away when he saw the
officers. The officer who looked in the Lexus saw that tools were strewn across the
passenger compartment, the interior passenger door was completely stripped, and the
front dash was removed near the stereo system. HELD: Defendant was lawfully
detained. (Osborne (2009) 175 Cal.App.4th 1052, 1058-1059.)
Example:
It was proper for an officer to detain (and pat-down) a man walking along the street at
3:00 a.m. carrying what appeared to be a metal pry bar or billy club and wearing bulky
clothing, and the officer knew him from numerous prior police contacts and drug
arrests. (Methey (1991) 227 Cal.App.3d 349, 358.)
Example:
It was reasonable to detain a man with an axe who was riding a bicycle at 3:00 a.m.,
even though no "axe crime" had been reported. "Some activity is so unusual, so far
removed from everyday experience that it cries out for investigation." (Foranyic
(1998) 64 Cal.App.4th 186, 190.)
1.
Specific Factors
In deciding whether your suspicion was reasonable, the court will look at all the factors--the
"totality of the circumstances." (Sokolow (1989) 490 U.S. 1, 7-8; Souza (1994) 9 Cal.4th
224, 231.)
a.
Nighttime/High Crime Area
Certain factors, such as "nighttime" and "high-crime" or "high-narcotics" area, will not
suffice, alone, to justify a detention. However, they are important and relevant, and in
combination with one or more other suspicious factors may justify a reasonable suspicion.
(Wardlow (2000) 528 U.S. 119; Souza (1994) 9 Cal.4th 224, 240-241; Ortiz-Hernandez (9th
Cir. 2005) 427 F.3d 567, 573 [officers may consider "nature of the area as part of the calculus
of suspicion, although it's not enough on its own"].)
Concerning a "high-crime" area, for instance, the California Supreme Court has stated: "An
area's reputation for criminal activity is an appropriate consideration in assessing whether an
investigative detention is reasonable under the Fourth Amendment," noting that "it would be
the height of naiveté not to recognize that the frequency and intensity [of criminal activities]
are greater in certain quarters than in others." (Souza (1994) 9 Cal.4th 224, 241; see also
Wardlow (2000) 528 U.S. 119, 124.)
Similarly, the court also recognized that the time of night is a pertinent factor in evaluating
the validity of an investigative detention. (Souza (1994) 9 Cal.4th 224, 241; see also Foranyic
(1998) 64 Cal.App.4th 186, 190.)
Example:
Fleeing from officers driving in a high-crime area at noon provided a sufficient basis
to detain. (Wardlow (2000) 528 U.S. 119.)
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2.10c
Example:
At 3 a.m. in a residential neighborhood known for burglaries and drug trafficking, a
patrol officer spotted two persons standing near a vehicle parked in a particularly dark
location, apparently talking to someone inside the car. When the officer activated his
spotlight and lit up the car interior, two people inside the car ducked down out of sight
and one person outside the car (Souza) took off running. The officer caught him,
patted him down, and discovered cocaine. HELD: The detention was lawful under
the totality of the circumstances. The area's reputation, the time of night, and the
suspects' efforts to avoid detection were all proper factors to consider and provided
reasonable suspicion of criminal activity. (Souza (1994) 9 Cal.4th 224, 242.)
Example:
At midnight, officers lawfully stopped defendant's car for a taillight violation. After
defendant complied with the request to step out of the car and walk backwards with
his hands behind his head, the officers grabbed his hands to conduct a weapons search
based on the "high-gang location." HELD: The detention and search based solely on
a driver's presence in a high-crime area late at night were unlawful. (Medina (2003)
110 Cal.App.4th 171.)
Example:
An experienced narcotics officer observed a man participate in an apparent hand-tohand exchange in a carport where the officer knew other drug deals had occurred,
which was in a known drug-ridden neighborhood. The officer had also seen the same
man, just before and after the exchange, walk over and reach into an apparent hiding
place, namely, the wheel-well of a pickup truck. HELD: There was reasonable
suspicion to detain (and pat down) the suspect. Although a person may not be
detained for merely being present in a drug-ridden neighborhood, "this setting is a
factor that can lend meaning to the person's behavior." (Limon (1993) 17 Cal.App.4th
524, 531-534.)
Example:
If you spot someone you do not recognize standing alone on a street corner in the
business district at 4 a.m., your suspicion would be more reasonable in a small town
than in Los Angeles. Even so, by itself, this fact probably would not justify anything
more than a "consensual encounter." However, if you add another factor or two, such
as the person has bulging pockets, runs away when he sees you, gives you a phony
answer, or is holding a "scanner" or a weapon, then you would have enough
"reasonable suspicion" to detain him for further investigation. (Brown (1989) 213
Cal.App.3d 187.)
Example:
It was reasonable to detain a man with an axe who was riding a bicycle at 3:00 a.m.,
even though no "axe crime" had been reported. "Some activity is so unusual, so far
removed from everyday experience that it cries out for investigation." (Foranyic
(1998) 64 Cal.App.4th 186, 190.)
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2.10d
b.
SEARCH AND SEIZURE - PERSONS
Race
Racial profiling is "the practice of detaining a suspect based on a broad set of criteria which
casts suspicion upon an entire class of people without individualized suspicion of the
particular person being stopped." (Pen. Code, § 13519.4, subd. (e).) Racial profiling is
prohibited in California. (Pen. Code, § 13519.4, subd. (f).) Reasonable suspicion for a
detention may not be based, in whole or in part, on racial profiling.
However, race or ethnicity is a proper factor to consider if it is part of a description of a
specific suspect you are looking for. "When the police have a description of a criminal
suspect, they may rely on that description, including race, to determine whether there is
probable cause to justify their actions." (Lomax (2010) 49 Cal.4th 530, 565; see MonteroCamargo (9th Cir. 2000) 208 F.3d 1122, 1134, fn. 22 ["Hispanic appearance, or any other
racial or ethnic appearance, including Caucasian, may be considered when the suspected
perpetrator of a specific offense has been identified as having such an appearance"].) In such
a situation, there would have to be additional factors, in addition to the suspect's race, that
provide reasonable suspicion and thus justify the detention.
Example:
The Border Patrol validly detained two vehicles with Mexicali license plates driving
in tandem, largely because they turned around at a place where the border agents' view
was blocked to avoid a newly-opened checkpoint station. However, it was improper
for the agents to consider the driver's Hispanic ethnicity as a suspicious factor, given
that 73% of the population of Imperial County was Hispanic. In other words, the
driver's Hispanic appearance contributed nothing toward the requirement of
particularized or individualized suspicion. (Montero-Camargo (9th Cir. 2000) 208
F.3d 1122, 1131-1135.)
Example:
Defendant complained that his detention was the result of racial profiling because
there were discrepancies between the description of the wanted robbery-murder
suspects and his appearance. The officers were on the lookout for an AfricanAmerican male with dreadlocks and an African-American female traveling in a
compact dark green or blue car. Defendant's car was stopped following a concededly
illegal lane change, and the detention of the occupants and the seizure of handguns
found in the car were lawful. On the question of racial profiling influencing the stop,
the Court noted that the consideration of race does not amount to racial profiling when
the police have a description of a suspect. On these facts, the traffic violation was
lawful grounds for the stop. (Lomax (2010) 49 Cal.4th 530, 564-565.)
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2.10e
Example:
An officer observed one white male and several black males leaving a housing project
populated by blacks. It was night, a high crime area, and in the past the officer had
seen whites in that area at night only to buy drugs. The group dispersed as the officer
approached. The Supreme Court said the detention of the white male was illegal. The
reasons of race, time of night and type of neighborhood were too flimsy to connect the
individual with crime. (Bower (1979) 24 Cal.3d 638.) (But see Wardlow (2000) 120
S.Ct. 673, holding that "flight" in a high- crime area is enough to detain (although race
would remain irrelevant, of course).)
Example:
Suspect in 1:00 a.m. convenience-store robbery was described as 19-year-old Mexican
with a moustache, wearing a dark jacket. Seven minutes later and one-half mile away,
an officer stopped a Mexican, approximately 20 years old, who had a moustache. The
detention was valid--even though it was based primarily on race--because race was
just part of a matching description. (McCluskey (1981) 125 Cal.App.3d 220.)
Example:
It was proper to detain two Hispanics seen sleeping in public at about 8:30 a.m. within
one and a half miles of the place a woman had been raped by a group of six young
Hispanic males, one of whom had been wearing a red shirt, where both suspects were
wearing red shirts, and otherwise fit the general description of race and age. (Carlos
M. (1990) 220 Cal.App.3d 372.)
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c.
2.11
Flight
If you approach someone or a group and one or more of them walks or runs away, and you
give chase, your act of chasing after the person does not constitute a detention. As the U.S.
Supreme Court has made clear, there is no "seizure" until you have actually physically
stopped the person or he stops on his own and submits to your authority. (Hodari D. (1991)
499 U.S. 621, 626.) A momentary hesitation and direct eye contact with police prior to flight
do not constitute submission to a show of authority. (Smith (9th Cir. 2011) 633 F.3d 889,
893.)
Example:
When officers drove around the corner in their unmarked vehicle, a group of males
who had been standing around a red car took off and so did the car. One officer got
out, ran around the block the other way, and approached within a few feet of the
suspect, who was looking over his shoulder while running towards the officer, before
the suspect looked up, saw him and discarded a rock of cocaine prior to being tackled.
HELD: The suspect was not "seized" until he was tackled because, up to that
moment, he had not submitted to the officer's assertion of authority. (Hodari D.
(1991) 499 U.S. 621, 626; see also Chesternut (1988) 486 U.S. 56--driving along
beside fleeing suspect did not constitute a detention; Arangure (1991) 230 Cal.App.3d
1302, 1306.)
Even if you yell "stop" or "freeze," display a weapon, or assert your authority in some other
manner, Hodari D. makes it clear that there still cannot be a detention until and unless the
suspect stops fleeing in response.
It is at the point that you catch the suspect, or when she stops in response to your actions or
commands, that a detention occurs. The detention will be legal only if it is supported by
reasonable suspicion. The Supreme Court has declined to create a "bright line" rule regarding
"flight." It has refused to rule either (1) that "flight" alone will always justify a detention or
(2) that flight alone can never justify a detention.
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Instead, both the U.S. Supreme Court and the California Supreme Court have held that
"flight" is merely one factor in the "totality of the circumstances" that a court considers in
determining whether reasonable suspicion existed. However, it is an important factor because
fleeing from police officers, as opposed to simply refusing to cooperate, is inherently
suspicious and "can be a key factor in determining whether in a particular case the police have
sufficient cause to detain." (Souza (1994) 9 Cal.4th 224, 235; Rodriguez (2012) 207
Cal.App.4th 1540, 1544.) "Headlong flight--wherever it occurs--is the consummate act of
evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such."
(Wardlow (2000) 528 U.S. 119, 124; Britton (2001) 91 Cal.App.4th 1112, 1118-1119.)
Thus, when combined with other factors, such as a high-crime area and/or time of night, you
often will have a valid basis to detain. (Smith (9th Cir. 2011) 633 F.3d 889, 893-894; Fuentes
(9th Cir. 1997) 105 F.3d 487, 490; see Garcia-Barron (9th Cir. 1997) 116 F.3d 1305 for a
discussion of avoiding border checkpoints.)
Example:
Fleeing from officers driving past in a high crime area at noon provided a sufficient
basis to detain. (Wardlow (2000) 528 U.S. 119; accord, Wesby (2018) 2018 WL
491521 [unprovoked flight by partygoers in a reportedly vacant house supported a
reasonable belief that the partiers knew they lacked permission to be there].)
Example:
At 3:00 a.m. in a residential neighborhood known for burglaries and drug trafficking,
an officer on routine patrol spotted two persons standing near a vehicle that was
parked in a particularly dark location, apparently talking to someone inside the car.
When he activated his spotlight and lit up the vehicle's interior, two persons inside
ducked down out of sight, and one of the two persons outside (Souza) took off
running. The officer chased him, stopped him, and patted him down, discovering
cocaine in the process. HELD: The detention was lawful under the totality of the
circumstances. The area's reputation, the time of night, and the suspects' efforts to
avoid detection were all proper factors to consider, and together they provided
reasonable suspicion of criminal activity. (Souza (1994) 9 Cal.4th 224, 240-242.)
Example:
During a police pursuit for a traffic offense, the driver slowed down so that a
passenger could jump out and run away. A minute later, another officer who had
heard the radio broadcast saw a man matching the passenger's description nearby and
stopped to shine a light on him before getting out of the patrol car to talk. The man
turned and ran, and the officer ran after him, ordered him to stop, and saw him throw
an item from his pocket over a chain link fence before he could catch up with him.
HELD: The passenger's flight combined with his tossing something over the fence
during his attempt to flee was reasonable suspicion for a detention. "This is not a case
where appellant was out for an evening jog." (Rodriguez (2012) 207 Cal.App.4th
1540, 1544.)
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Example:
d.
2.12a
Officers had a sufficient basis to detain a man standing alone at 4 a.m. next to a
business where a silent alarm had just been triggered and the man, upon seeing the
officers, started to walk away. (Lloyd (1992) 4 Cal.App.4th 724, 733.)
Your Experience
Do not overlook your experience. "Law enforcement officers may draw on their own
experience and specialized training to make inferences from and deductions about the
cumulative information available to them that might well elude an untrained person." (Letner
(2010) 50 Cal.4th 99, 145-146; Hernandez (2008) 45 Cal.4th 295, 299; Limon (1993) 17
Cal.App.4th 524, 532.)
Example:
The suspect was in a park where marijuana sales often took place, doing nothing. An
apparent stranger drove up, approached the suspect, gave him money for two small,
thin, white, filterless cigarettes, and then drove away. Because of the officer's
experience and the specifics of the exchange he had observed, the court found
probable cause for arrest. (Stanfill (1985) 170 Cal.App.3d 420.)
You may also rely on your training an experience to evaluate whether a suspect is being
truthful. (Wesby (2018) 2018 WL 491521*8--based on the "vagueness and implausibility of
[the suspects'] stories, the officers could have reasonably inferred that they were lying and
that their lies suggested a guilty mind"; Devenpeck v. Alford (2004) 543 U.S. 146--probable
cause properly based on suspect being untruthful and evasive.)
e.
Officer Safety
A detention may also be justified based on officer safety. In Terry, the U.S. Supreme Court
held that the lawfulness of the detention based on something less than probable cause came
down to "whether a reasonably prudent man in the circumstances would be warranted in the
belief that his safety or that of others was in danger." (Terry (1968) 392 U.S. 1, 27.)
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Courts evaluating the lawfulness of a detention based on officer safety are required to balance
the extent of the intrusion upon the individual against the interests of the government, which
includes as a significant factor "the interest in minimizing the risk of harm to the officers."
(Summers (1981) 452 U.S. 692; see also Glaser (1995) 11 Cal.4th 354, 364.)
Example:
Police were told that a male juvenile, for whom they had an arrest warrant, was in a
certain apartment. Three officers went to the apartment, entered after obtaining
consent from the female who lived there, and observed two males seated in the living
room. While one officer "swept" the apartment looking for the juvenile and the other
officer stood by the door, the third officer asked the two men "if they could just stay
seated where they were." He then asked them who they were, what their relationship
was to the woman who answered the door, and why they were there. During this time,
he noticed that one of the males had dilated pupils, which led to his arrest. HELD:
Because the detention was so minimal (no force, no patdown, brief duration, etc.), it
was reasonable and therefore legal because, viewed "from the perspective of the
police officers who entered the apartment," the situation was still potentially
dangerous for the officers (they were on unknown turf, did not know the floor plan,
did not know the identity of the males or their relationship to the juvenile, etc.).
(Hannah (1996) 51 Cal.App.4th 1335.)
Example:
Las Vegas Police received a hotline call at 4:40 a.m. from an identified caller
reporting an adult black male "known to sell drugs in the area" sleeping in a grey Ford
500 car in a parking lot. Responding officers found the car still in the parking lot,
with temporary license plates that prevented an initial vehicle check. They stopped
behind the Ford to block its exit and turned on the unit's overhead "take-down" lights,
which caused the driver to sit up, start the car, and put it in reverse. The officers
approached on foot, and one officer drew his gun while the other yelled at the driver to
turn off the engine and step out of the car. HELD: The detention was supported by
reasonable suspicion. The officers faced a potentially dangerous situation when they
encountered a possible drug dealer in a car with temporary license plates in a highcrime area in a dark and deserted parking lot. (Williams (9th Cir. 2016) 846 F.3d
303.)
A detention based on officer safety does not require that the officer also suspect that the
detainee was involved in criminal activity. (See Matelski (2000) 82 Cal.App.4th 837, 846853 [officers arriving at premises to conduct a probation search properly detained a departing
couple to see if they were ex-felons, in violation of the probationer's "non-association"
clause]; Vaughan (9th Cir. 1983) 718 F.2d 332, 334-335 [officers justified in detaining and
patting-down passenger in car driven by person for whom arrest warrant had been issued].)
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f.
2.12c
Suspected Weapons Violations
California has a specific provision authorizing the detention of a person suspected of any
weapons violation "to determine whether a crime relating to firearms or deadly weapons has
been committed." (Pen. Code, § 833.5, subd. (a).)
Penal Code section 833.5, subdivision (b), further provides that incident "to any detention
permitted pursuant to subdivision (a), a peace officer may conduct a limited search of the
person for firearms or weapons if the peace officer reasonably concludes that the person
detained may be armed and presently dangerous to the peace officer or others."
The provision does not permit a detention or a search at the person's residence or place of
business without a "search warrant or other reasonable cause to detain or search." (Pen.
Code, § 833.5, subd. (d).)
g.
Drug Courier Profile
The legality of detentions based on a "drug courier profile"--meaning noncriminal factors
about an individual, such as coming from Miami, looking nervous, using cash, not having
luggage, etc.--has traditionally caused difficulty for the courts. Courts have ruled, generally,
that such a "profile" will not justify a detention because, by itself, it does not rise to the level
of "reasonable suspicion."
Therefore, traditionally it has been safer for you to use "drug courier profile" information
simply as a basis for further observations and investigation or for the initiation of a voluntary
consensual encounter, unless you have some additional information indicating ongoing
criminal activity, such as evasion or the use of an alias.
However, in Sokolow (1989) 490 U.S. 1, the Supreme Court upheld an investigatory stop
where: (1) the suspect paid $2,100 for two airplane tickets from a fat roll of $20 bills; (2) he
traveled under a name that did not match the name under which his telephone number was
listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in
Miami for only 48 hours, even though a roundtrip flight from Honolulu to Miami takes 20
hours; (5) he appeared nervous during his trip; and (6) he and his companion checked none of
their four pieces of luggage. The court refused to place any extra weight on these
circumstances simply because they fit the DEA's "drug courier profile." Instead, the court
used the traditional "reasonable suspicion" test, based on the totality of the circumstances. It
held that the circumstances in this case, considered together, added up to reasonable
suspicion. (See also Malone (9th Cir. 1989) 886 F.2d 1162; Low (9th Cir. 1989) 887 F.2d
232; compare Arvizu (2002) 534 U.S. 266.)
h.
Suspected Immigration Violation
Based on California's public policy of encouraging all victims and witnesses to cooperate
with the criminal justice system, Penal Code section 679.015 prohibits detaining a witness or
victim for suspected immigration violations. The statute also prohibits turning these
individuals over to federal immigration authorities absent a judicial warrant. (An ICE
detainer or "ICE Warrant" not signed by a federal magistrate or judge is not a "judicial
warrant.")
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Information from Others
You can properly base a detention on information you receive from an eyewitness, victim,
police officer, dispatcher, or--if accurate--other "official channels" because the law generally
considers such persons or sources to be automatically reliable. (Hensley (1985) 469 U.S. 221,
232; Brown (2015) 61 Cal.4th 968, 983; Brueckner (1990) 223 Cal.App.3d 1500, 1504;
Mueller (1985) 163 Cal.App.3d 681, 685; Waters (1973) 30 Cal.App.3d 354.) The
"collective knowledge" rule--when probable cause for an arrest is based on information from
other officers--also applies to reasonable suspicion justifying a detention. (Roberts (2010)
184 Cal.App.4th 1149, 1191.) On the other hand, "Be on the Lookout" bulletins are not
considered reliable per se. (Pitts (2004) 117 Cal.App.4th 881.)
Example:
An officer personally saw and recognized an individual as someone whose name he
had seen about a month earlier on a list of persons wanted on outstanding arrest
warrants. The officer called dispatch to confirm. He detained the suspect and, during
the detention, recovered some cocaine. A few minutes later, the officer was informed
that the warrant had been served two weeks earlier. HELD: The detention was valid.
The officer had reasonable suspicion originally, even though it later disappeared. In
other words, a computer "hit" will provide enough to detain, but only confirmation
will provide probable cause to arrest. (Conway (1990) 222 Cal.App.3d 806.)
Example:
Intercepted communications indicated that two identified Crips were driving to Deep
Valley to shoot rival gang members. Officers were briefed and provided with a
vehicle description. The car stop was valid based on the officers' "collective
knowledge" of the planned shooting. (Roberts (2010) 184 Cal.App.4th 1149, 1191.)
Example:
A 30-day-old "Be on the Lookout" bulletin based on information from an untested
informant did not provide a lawful basis for a detention absent independent
corroboration by the police. (Pitts (2004) 117 Cal.App.4th 881.)
Regarding informants, information from a known "snitch" would probably justify a detention
if he had given you reliable information in the past. (McBride (1981) 122 Cal.App.3d 156.)
As with most Fourth Amendment issues, courts will look to the totality of circumstances and,
in the case of third-party information, balance "'the gravity of the public concerns served by
the seizure, the degree to which the seizure advances the public interest, and the severity of
the interference with individual liberty.'" (Turner (2013) 219 Cal.App.4th 151.)
Example:
A disgruntled father of a high school football player threatened one of the coaches and
said he would see the coach after the game. Someone reported to another coach that
the father had a gun. After the game, officers found the father in the parking lot with a
group and he started walking away when the police car pulled into the lot. The police
drew their weapons and placed him in handcuffs. He admitted he had a gun in his
pocket. HELD: The detention was lawful. Having a gun on campus was a violation
of Penal Code section 626.9. Even though police only had third-party information
about the gun, they were faced with a crowd of people leaving a high school football
stadium and a report that a person known to the coach intended to follow up on his
threat after the game. (Turner (2013) 219 Cal.App.4th 151.)
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a.
2.12e
Anonymous Tips
Where you have nothing more than a truly anonymous tip (as opposed to a known individual
who merely wishes to remain "anonymous"), you need to be very cautious about taking any
action beyond a "consensual encounter" unless you observe suspicious circumstances or
obtain consent. As a general rule, information from a totally anonymous source will not be
sufficient to justify a detention or patdown unless there is sufficient corroboration or other
indications of the tip's reliability.
"Unlike a tip from a known informant whose reputation can be assessed and who can be held
responsible if her allegations turn out to be fabricated . . . , 'an anonymous tip alone seldom
demonstrates the informant's basis of knowledge or veracity.' As we have recognized,
however, there are situations in which an anonymous tip, suitably corroborated, exhibits
'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory
stop.'" (J.L. (2000) 529 U.S. 266, 270, quoting from White (1990) 496 U.S. 325, 327, 329.)
In White (1990) 496 U.S. 325 (which the Supreme Court characterized as a "close case"), the
court found that police were entitled to rely on an anonymous tip to detain the suspect
because there was sufficient corroborative information, namely, accurate "predictive"
behavior. Specifically, the tipster had accurately forecast what the suspect would do later that
day. (See also Pinela-Hernandez (9th Cir. 2001) 262 F.3d 974, 978.)
On the other hand, in J.L. (2000) 529 U.S. 266, the Supreme Court held that the anonymous
tip was not sufficiently reliable where the tipster merely described a suspect, gave a location,
and said he was carrying a gun, and the only corroboration was that a person matching the
description was observed at the given location. (But see Coulombe (2000) 86 Cal.App.4th
52.) The Court did suggest that certain anonymous reports, such as a report of a person
carrying a bomb, would justify a search even without a showing of reliability given the
gravity of the danger alleged in the tip. (J.L. (2002) 529 U.S. 266, 272-273.)
Also, if your contact with someone based on a tip is a consensual encounter, corroboration of
the tip is not required because you are not detaining anyone. (Rivera (2007) 41 Cal.4th 304-corroboration not required in advance of "knock and talk.")
Example:
Police received an anonymous telephone tip that Vanessa White would be leaving a
described address at a particular time in a brown Plymouth station wagon with the
right taillight lens broken, that she would be going to Dobey's Motel, and that she
would be in possession of about an ounce of cocaine inside a brown attache case.
Officers went to the address, observed a car that matched the description, and saw a
woman come out of the described residence at approximately the anticipated time, not
carrying anything, and drive toward Dobey's Motel. The Supreme Court held that this
corroboration made the tip sufficiently reliable to provide reasonable suspicion to
detain. (White (1990) 496 U.S. 325, 331-332.)
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Example:
An anonymous telephone tip that a young black man, standing at a described bus stop
and wearing a plaid shirt, was carrying a gun was insufficient to justify a matching
suspect's detention and patdown. "All the police had to go on in this case was the bare
report of an unknown, unaccountable informant who neither explained how he knew
about the gun nor supplied any basis for believing he had inside information about
J.L." "The reasonable suspicion here at issue requires that a tip be reliable in its
assertion of illegality, not just in its tendency to identify a determinate person." (J.L.
(2000) 529 U.S. 266, 272, emphasis added; Jordan (2004) 121 Cal.App.4th 544.)
Example:
An anonymous tipster calling from a pay phone reported that a grey station wagon
was parked at a nearby restaurant and that the driver was armed and carrying a kilo of
cocaine. Officers observed defendant leave the restaurant and drive away. A warrants
check indicated that the registered owner of the wagon had an outstanding
misdemeanor warrant. The officers conducted a felony stop, ordering the driver to get
out of the car and to his knees. HELD: The uncorroborated anonymous tip did not
provide probable cause for the "felony extraction." The court intimated that the
discovery of the warrant might have provided sufficient independent grounds to stop
defendant's vehicle, but defendant's lack of similarity to the physical description on
the warrant "immediately dispelled" that basis for the arrest. (Saldana (2002) 101
Cal.App.4th 170.)
Example:
Information from two individuals, moments apart, both telling the same officer that a
similarly described man at a nearby location had a gun, was enough to justify a
detention, even though the tipsters' identities were not obtained, because there were
two tipsters, they gave almost identical information, and the officer had a face-to-face
opportunity to assess their credibility. (Coulombe (2000) 86 Cal.App.4th 52, 55-60,
distinguishing J.L.)
Example:
Anonymous telephone tip that a man was selling drugs from a gray Ford Explorer was
sufficiently corroborated by officer's observation of what appeared to be a hand-tohand drug transaction between a woman standing outside the driver's door and
defendant, who was still parked at the location identified in the call. (Butler (2003)
111 Cal.App.4th 150.)
Example:
Reasonable suspicion to detain existed when officers responded to an anonymous tip
that someone was selling or doing drugs in the hallway of a three-unit building. They
found a nonresponsive individual crouched on the darkened stairway acting strangely
who put something in his mouth and ran. (Johnson (1991) 231 Cal.App.3d 1, 11.)
b.
9-1-1 Calls
In Navarette, the Supreme Court recognized that modern-day 9-1-1 calls are rarely
"anonymous." 9-1-1 calls can be recorded, which would allow investigators or victims of a
false tip to identify a caller. And if a 9-1-1 call is made from a cell phone, the phone number
is relayed to 9-1-1 dispatchers and service carriers are required to identify the caller's
geographic location. Officers therefore may rely on information reported in a 9-1-1 call in
forming reasonable suspicion for a detention. (Navarette (2014) 134 S.Ct. 1683.)
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Depending on the crime reported, corroboration of the 9-1-1 caller's observations is not
required. For example, a contemporaneous anonymous 9-1-1 report of suspected drunk
driving justified a brief investigatory detention even without corroboration of illegal activity.
(Wells (2006) 38 Cal.4th 1078; Lowry (2005) 129 Cal.App.4th 926.) A 9-1-1 call reporting
that a specific vehicle in a specific location had run the caller off the road justified a traffic
stop. (Navarette (2014) 134 S.Ct. 1683.) A victim's contemporaneous 9-1-1 call that
described the suspect, his vehicle, his location and the details of the crime--assault with a
firearm--was also sufficient. (Dolly (2007) 40 Cal.4th 458; Lindsey (2007) 148 Cal.App.4th
1390.) A 9-1-1 call reporting a fight involving a loaded gun justified a brief detention of the
only person leaving the scene just minutes after the call. (Brown (2015) 61 Cal.4th 968.) The
callers in these cases were able to report conduct that they could, as laypersons, describe as
unlawful. They also articulated first-hand accounts of the crimes, which significantly
supported the reliability of their reports. (Navarette (2014) 134 S.Ct. 1683.)
Example:
Humboldt CHP received a 9-1-1 call that a silver Ford pickup ran the caller off the
road on Highway 1. The caller provided the truck's license number and the location
and time of the incident. A Mendocino CHP officer located the truck headed
southbound on Highway 1 approximately 18 minutes after the call. It took five
minutes for the officer to make a U-turn and stop the truck. The driver was hauling 30
pounds of marijuana in the truck bed. HELD: Even without the officer personally
observing indicia of impaired driving, the 9-1-1 call was sufficient to provide
reasonable suspicion that the driver had committed a traffic offense in running another
car off the road. (Navarette (2014) 134 S.Ct. 1683.)
Example:
An unidentified 9-1-1 caller reported that a light-skinned African-American male with
a bandaged left hand sitting in the driver's seat of a parked gray Maxima had pulled a
gun on the caller after mentioning a gang name. The caller was afraid to give his
name because of possible retribution. Two minutes later, the caller, this time
identifying himself as "Drew," called back to report that he had driven by the parked
car and saw that it was black, not gray. Within three minutes, officers located a black
Maxima parked in the same location with a driver matching the caller's description.
Officers detained the driver and his two passengers and found a revolver under the
front passenger seat. HELD: The investigative detention was lawful. The 9-1-1 call
was a firsthand report of violent criminal conduct requiring immediate investigation to
protect public safety; the call was recorded; the caller, who had given a reason for
remaining anonymous, reported immediate and detailed facts; and the police
responded within minutes. (Dolly (2007) 40 Cal.4th 458, 461.)
Example:
An anonymous caller reported a midnight disturbance possibly involving a firearm
outside a residence in a known gang area. The caller described the individuals and
their clothing and reported that they were headed toward a park known to be
frequented by gang members. Days before the call, officers had responded to the
same residence and seized two firearms following a shooting. HELD: Officers could
detain the persons seen approaching the park and exactly matching the caller's
description. The anonymous report was "every bit as reliable as the report described
in Dolly, if not more so." (Richard G. (2009) 173 Cal.App.4th 1252, 1258.)
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Example:
A 9-1-1 caller reported four people fighting in the alley behind his residence. He
heard someone say a gun was loaded, and both the caller and the dispatcher heard
screams. A deputy arrived within three minutes, and the only person in the area was
driving out of the alley. The deputy asked if he had seen a fight, but the person just
kept driving. HELD: The 9-1-1 call combined with the deputy's quick response and
appellant leaving the scene justified a brief investigatory detention. "The citizen who
called for his help would surely hope the officer would do more to secure the safety of
his neighborhood than shrug and drive away." (Brown (2015) 61 Cal.4th 968.)
Example:
An anonymous 9-1-1 caller reported shots fired outside her residence and provided a
description of a "Black male with small ponytails." Officers observed defendant
walking with two other men in the area of the report. Defendant matched the caller's
description and appeared to be holding up his pants at the waist where it looked like
he was holding something heavy. HELD: The detention based on the 9-1-1 call and
patsearch for officer safety were valid. Shooting a gun on a residential street "posed a
grave and immediate risk" to the community; the report of gunfire was unlikely a
hoax; the caller's firsthand description of the crime, perpetrator, and location were
detailed; and the caller had a plausible explanation for wanting to remain anonymous.
The patsearch was justified by the officer's concern that defendant was holding a gun
at his waist. (Lindsey (2007) 148 Cal.App.4th 1390; accord, Edwards (9th Cir. 2014)
761 F.3d 977--unidentified 9-1-1 caller reported a "young black male" shooting at
passing cars and the call included details of the shooter's location, height, age, and
clothing and a description of the handgun used.)
Example:
A 9-1-1 call was not an "anonymous tip" under J.L. even though the caller only gave
his name and was using someone else's cellular phone. The call provided a basis for a
brief detention to investigate the report that the caller had just been threatened with a
gun. (Terry-Crespo (9th Cir. 2004) 356 F.3d 1170.)
Defendants challenging detentions based on 9-1-1 calls sometimes claim that an officer must
be able to attest to the reliability of a particular 9-1-1 call to rely on the call for a detention.
The California Supreme Court squarely rejected this argument in Brown (2015) 61 Cal.4th
968, 983. "If a 911 call 'has sufficient indicia of reliability . . . a dispatcher may alert other
officers by radio, who may then rely on the report, [citation], even though they cannot vouch
for it.'" Officers may then detain or arrest a suspect based on the dispatch communicated
through "official channels." If challenged, the People can establish the chain of information
by calling the dispatcher at the section 1538.5 hearing or introducing a recording of the call.
3.
Effect of Unlawful Detention/Attenuation
Suppression of evidence under the Fourth Amendment requires that the evidence be the fruit
of an illegality. Evidence that is "attenuated" from improper conduct is not "fruit" of the
illegality. For example, if a passenger is unlawfully detained, but the investigating officer
learns that he has an outstanding warrant and arrests him on the warrant, the search incident to
arrest on the warrant is lawful because the warrant was an "intervening circumstance."
(Brendlin (2008) 45 Cal.4th 262, 265; accord, Strieff (2016) 136 S.Ct. 2056.)
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This scenario would not favor the prosecution if a court found that the unlawful detention was
the result of purposeful or flagrant misconduct. (Strieff (2016) 136 S.Ct. 2056; Brendlin
(2008) 45 Cal.4th 262, 265.) In Strieff, the Supreme Court defined flagrant unlawful
misconduct as "severe police misconduct" that was more than "the mere absence of proper
cause for the seizure." (Strieff (2016) 136 S.Ct. 2056.) The Court identified the misconduct
in Kaupp (2003) 538 U.S. 626 as flagrant when officers made a warrantless arrest in the
defendant's home after they were denied a warrant and some of the officers knew they lacked
probable cause. In contrast, an isolated instance of negligence occurring in connection with a
bona fide investigation is not flagrant misconduct.
Although the intervening circumstance in Brendlin and Strieff was the discovery of an arrest
warrant, California courts have not limited the attenuation doctrine to outstanding arrest
warrants. The discovery of a detainee's searchable status prior to the search could be an
intervening circumstance sufficient to attenuate the illegality of an improper detention
(Durant (2012) 205 Cal.App.4th 57; but see Bates (2013) 222 Cal.App.4th 60--probation
search condition inapplicable because officer had no basis whatsoever for vehicle stop and
probation searches are discretionary.) Additionally, the independent, intervening act
necessary to dissipate the taint of an illegal detention can be caused by the defendant's own
behavior, such as the commission of a new crime directed at the officer. (Richard G. (2009)
173 Cal.App.4th 1252, 1262.)
Example:
Officer located two males matching an anonymous caller's description of persons
involved in a disturbance possibly involving a firearm. The officers repeatedly
commanded them to stop and sit on the ground. One minor responded with threats
and punched the officer who was attempting to put him in a control hold. Any
preceding Fourth Amendment violation could not result in the suppression of evidence
of the minor's threats and violent behavior. "An individual's decision to commit a new
and distinct crime, even if made during or immediately after an unlawful detention, is
an intervening act sufficient to purge the 'taint' of a theoretical illegal detention."
(Richard G. (2009) 173 Cal.App.4th 1252, 1262.)
Example:
Officers detained Cox for walking down the middle of the roadway in a business
district, which was prohibited by the local city code. The local code was actually
preempted by a contrary provision in the Vehicle Code, which made the detention
unlawful. When the officers tried to pat-search Cox for weapons, Cox struggled and
ran toward an empty field. Cox was handcuffed after falling down and after
struggling with officers for several more minutes. HELD: Cox's flight and his
attempts to resist arrest were independent, intervening acts "sufficiently distinct from
the illegal detention to dissipate the taint" created by the illegal detention. (Cox
(2009) 168 Cal.App.4th 702.)
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The state appellate courts are currently divided on whether a probation search condition
provides sufficient attenuation following an invalid detention of a vehicle and its occupants.
The better analysis, provided in Durant (2012) 205 Cal.App.4th 57, is that learning of a search
condition before conducting a probation search is an intervening circumstance that, on its
own, justifies a search pursuant to the terms and conditions of probation. The contrary view,
in Bates (2013) 222 Cal.App.4th 60, is that discovering a detainee's probation condition is
somehow a weaker intervening circumstance, one that does not provide attenuation. The
Bates decision is flawed by the fact that a probation search condition is, intrinsically, a
compelling intervening circumstance because a probationer consents to warrantless search or
seizure in lieu of incarceration and, by virtue of that consent, has no residual expectation of
privacy. (Ramos (2004) 34 Cal.4th 494, 506.)
Example:
Officers stopped Durant's car for failing to signal within 100 feet of a turn, but the
stop was not authorized under Vehicle Code §§ 22107 and 22108. One of the officer's
recognized Durant almost immediately as a probationer with a search condition before
conducting a patdown search and finding a loaded handgun in Durant's waistband.
HELD: The intervening circumstance of Durant's probation search condition
attenuated the taint of the erroneous vehicle stop because the "search condition
supplied legal authorization to search that was completely independent of the
circumstances leading to the traffic stop." The court noted that there was no evidence
of any flagrancy or purposefulness to the erroneous traffic stop. The court also noted
that the purpose of the exclusionary rule would not be served by suppressing the gun
simply because the officer did not recognize Durant immediately before the stop.
(Durant (2012) 205 Cal.App.4th 57, 66.)
Example:
Deputies investigating a robbery were on the look out for Marcus Bates, who they
knew to be a searchable probationer living in a nearby apartment complex. When they
were approaching Bates' apartment, one deputy saw an African-American male
wearing colors similar to the reported suspect walking along the fence to the adjacent
mobile home park. Another deputy drove to the entrance of the mobile home park,
and within two minutes a car with three occupants approached the exit. The deputy
hailed the driver to stop, and the rear passenger identified himself as Marcus Bates-the probationer who was the main suspect in the robbery. HELD: The stop was
unlawful, and Bates' probation search condition did not attenuate an invalid detention.
The court did not apply Brendlin because a probation search condition "is a
discretionary enforcement tool and therefore a less compelling intervening
circumstance than an arrest warrant." The court also was not "comfortable" applying
Durant to the case "as doing so would open the door to random vehicle detentions for
the purpose of locating probationers having search conditions." (Bates (2013) 222
Cal.App.4th 60.)
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C.
2.13
Duty to Stop/Use of Force to Stop Suspect
Whether you are detaining someone (1) to investigate your reasonable suspicion or (2) to
issue a "cite and release" citation, the suspect has an obligation to stop. A suspect has "no
right to resist" a lawful detention. (Lloyd (1989) 216 Cal.App.3d 1425, 1429.) If the suspect
does not stop, he has violated Penal Code section 148 by obstructing or delaying you in the
performance of your duties (Andre P. (1991) 226 Cal.App.3d 1164, 1169) and you may use
whatever physical force is necessary to make him stop (Johnson (1991) 231 Cal.App.3d 1,
12-13; Gregory S. (1980) 112 Cal.App.3d 764, 778).
Similarly, if a lawful detention (or arrest) has begun in a public place, a suspect may not
defeat it by running inside; you have the right (under the "exigency" or "hot pursuit"
doctrines) to follow him or her into the residence. (Lloyd (1989) 216 Cal.App.3d 1425.)
D.
Investigative Actions - Identification
Mere questioning by police during a detention does not constitute an additional seizure
requiring additional reasonable suspicion. For example, officers did not need reasonable
suspicion to ask a third party detained during the execution of a search warrant questions
regarding her identity, date and place of birth, or immigration status. (Muehler v. Mena
(2005) 544 U.S. 93; see Vibanco (2007) 151 Cal.App.4th 1, 13 [requesting identification from
passenger detained for officer safety after traffic stop].)
When you have detained a suspect, you are allowed to take whatever investigative actions are
reasonable under the circumstances. Although general practice may be to use the least
intrusive means available to verify or dispel your suspicion, this is not a constitutional
requirement. (Navarette (2014) 134 S.Ct. 1683; Sokolow (1989) 490 U.S. 1, 11; Raymond C.
(2008) 45 Cal.4th 303, 308.)
Common techniques include: (1) questioning the suspect about his identity and conduct; (2)
contacting other persons to confirm the explanation, verify the ID, or determine whether the
person is wanted; (3) checking premises, examining objects or contacting neighbors or other
individuals to determine whether a crime actually occurred; and (4) bringing the victim to the
suspect for an in-field "showup."
If you are going to cite an individual for a Vehicle Code violation--misdemeanor or
infraction--you have the right to ascertain and verify his identity. (Valencia (1993) 20
Cal.App.4th 906, 918.) This means he must produce either a driver's license or its functional
equivalent for examination, or else you have the discretion to take him into custody under
Vehicle Code section 40302, subdivision (a). If he does not or cannot produce ID, or if other
suspicious or difficult circumstances arise, you are entitled, but not required, to take
additional steps to ensure the accuracy of the suspect's identity. (McKay (2002) 27 Cal.4th
601, 621--involving a bicyclist; Monroe (1993) 12 Cal.App.4th 1174, 1181-1189--involving a
driver.)
Example:
A driver who was outside her car after being observed driving without a license said
that she might have identification in her car. When the officer looked for ID in her
purse left on the front seat, he found drugs. HELD: The limited search for
identification was valid. (Lopez (2016) 4 Cal.App.5th 815, on review in S238627.)
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Example:
Officer, who had made a traffic stop and ordered everyone out, could properly check
for registration where the driver had no license, denied ownership, and said the other
occupants were hitchhikers. When he observed a wallet on the front seat, it was
proper to seize it and, after everyone denied owning it, to open it to determine
ownership. (Webster (1991) 54 Cal.3d 411, 431.)
Example:
During a traffic stop, the driver gave his name but denied having a driver's license or
vehicle registration. Prior to issuing a citation, it was proper for the officer to enter
the vehicle and conduct a limited search of the areas where such documentation
"reasonably may be expected to be found." This included looking under the driver's
and front passenger's seats, where a wallet, drugs, and paraphernalia were discovered
and searched. (Arturo D. (2002) 27 Cal.4th 60; see Ch. 4-II-E.)
Example:
It was permissible to use the suspect's car key to help establish identity by inserting
the key into the locks of various cars parked in the lot until officers found the right
car. ($109,179 (9th Cir. 2000) 228 F.3d 1080, 1086-1088.)
However, except for this type of limited vehicle search that is permitted because the suspect's
identity is at issue, you should be very careful about conducting other searches for
identification during a detention, such as by reaching into a suspect's clothing or looking
through his wallet. One published appellate case specifically prohibits a "patdown search" for
identification even during a traffic stop. (Garcia (2006) 145 Cal.App.4th 782, 786 [but note
that the only argument presented in the trial court was that the officer could conduct a Terry
"patdown search for identification"].)
Normally, a search is not permitted unless (1) you have consent, (2) you are concerned about
a possible weapon, (3) you have "probable cause" to arrest and/or search, or (4) it is a "last
resort," that is, you have already given the detainee the opportunity to cooperate by following
your requests and he has refused.
Example:
If a suspect admits she has identification but refuses to produce it, you may conduct a
limited search for it.
Example:
If the suspect produces ID that you know is false, you have probable cause to arrest
for a violation of Penal Code section 148.9, and you may conduct a limited search for
other ID.
Example:
A possible murder suspect was discovered and detained shortly after a homicide.
During a patdown for weapons, the officer felt a wallet. Because the suspect had
already said he did not have any identification on him, it was proper for the officer to
retrieve the wallet and look through it. "The suspect has no constitutional right to
keep his identification a secret under the circumstances existing here." (Loudermilk
(1987) 195 Cal.App.3d 996.)
Example:
If a suspect gives his name and insists he has no ID, but you can see a wallet in his
pants pocket, you may ask him to take it out and look through it while you observe
him for your own protection. (Long (1987) 189 Cal.App.3d 77.)
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2.14a
The U.S. Supreme Court has drawn a distinction between a detainee's duty to identify himself
and his duty to answer non-identification questions during a lawful detention. In Berkemer
(1984) 468 U.S. 420, 439, the court stated that a detainee is not obligated to answer any
questions you put to him during a lawful detention. (Christian (9th Cir. 2004) 356 F.3d
1103.) However, in Hiibel, the Supreme Court clarified that it was not referring in Berkemer
to questions regarding identity. The Court upheld as constitutional a Nevada "stop and
identify" statute and found that a detainee's failure to identify himself could be the basis for a
lawful arrest. (Hiibel (2004) 542 U.S. 177.)
Unlike Nevada and other states, California does not have a statute mandating that a detainee
identify himself, and that obligation cannot be read into Penal Code section 148. Although
you may take whatever steps are reasonably necessary under the circumstances to ascertain
the identity of a person you have lawfully detained, Hiibel does not provide a means of
arresting someone for failing or refusing to identify himself. The Ninth Circuit has ruled that
a suspect's failure to identify himself cannot, on its own, justify an arrest: "the use of Section
148 to arrest a person for refusing to identify herself during a lawful Terry stop violates the
Fourth Amendment's proscription against unreasonable searches and seizures." (Martinelli
(9th Cir. 1987) 820 F.2d 1491, 1494; Christian (9th Cir. 2004) 356 F.3d 1103, 1106; see also
Quiroga (1993) 16 Cal.App.4th 961, 969, fn. 2; Chase C. (2015) 243 Cal.App.4th 107
[minor's refusal to identify himself was not grounds for a violation of section 148].)
Likewise, you cannot arrest or cite a "loiterer" or "wanderer" for failing to identify himself.
(Lawson (1983) 461 U.S. 352.)
Note, however, that it is a violation of Penal Code section 148 for a suspect who has been
arrested for a felony to fail to orally identify himself during a routine booking interview.
Example:
It was not a violation of Penal Code section 148 for an arrestee to fail to give his name
in response to questions asked while being driven to the station "because it did not
delay or obstruct a peace officer in the discharge of any duty within the meaning of
the statute." The officer had no compelling reason to complete the "booking sheet"
until the suspect arrived at jail. However, at the jail, the police had the right to
question the suspect about his identity during a routine booking, and the suspect's
refusal to verbally identify himself constituted a violation of Penal Code section 148
just as much as if he had fled from an investigatory detention or physically struggled
with a peace officer. (Quiroga (1993) 16 Cal.App.4th 961, 972; Chase C. (2015) 243
Cal.App.4th 107.)
A person's failure to identify himself may, if combined with "belligerent" conduct, provide a
basis for a detention.
Example:
Officers responded to a call that two men in a crowded park had a firearm. A witness
who had been threatened pointed out a group of three men. Defendant, who broke
away from the group and approached one of the officers, refused to identify himself,
refused to keep his hands away from his pockets, was hostile and aggressive, and
refused to submit to a patdown search. HELD: The detention and patdown were
reasonable given the circumstances. (Lopez (2004) 119 Cal.App.4th 132.)
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E.
SEARCH AND SEIZURE - PERSONS
Use of Force/Physical Restraints
Generally speaking, you should avoid using force and/or physical restraints, such as
handcuffs or guns, during a detention situation whenever possible because these "indications
of custody" may cause a court to view the detention as an arrest. "When the detention
exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto
arrest requiring probable cause." (Justin B. (1999) 69 Cal.App.4th 879, 887; Antonio B.
(2008) 166 Cal.App.4th 435, 440.)
Example:
Three officers stopped two teenagers who were walking down the street at 2:30 in the
afternoon after they observed one of them smoking what appeared to be a marijuana
cigarette. That teenager was arrested and placed in handcuffs; the other juvenile, who
had not been observed smoking, was also placed in handcuffs based on the detective's
practice of "always" handcuffing detainees. HELD: The use of handcuffs under these
circumstances was a de facto arrest not supported by probable cause. The juvenile's
consent to search, given after he was placed in handcuffs, was invalid. (Antonio B.
(2008) 166 Cal.App.4th 435.)
Example:
Officer placed handcuffs on an unarmed suspect "for your safety and mine." Despite
the fact the suspect seemed to agree to the handcuffs, the court found that the officer
had used excessive force and turned a valid detention into an invalid arrest.
(Campbell (1981) 118 Cal.App.3d 588.)
On the other hand, you can use whatever precautionary safety measures are reasonable under
the circumstances. During a lawful detention, officers are "authorized to take such steps as
[are] reasonably necessary to protect their personal safety and to maintain the status quo
during the course of the stop." ($109,179 (9th Cir. 2000) 228 F.3d 1080, 1084.) The use of
force, handcuffs, etc., does not necessarily turn a detention into an arrest. (Celis (2004) 33
Cal.4th 667, 675-676--stopping defendant at gunpoint, handcuffing him, and ordering him to
sit on the ground for two minutes was a detention, not an arrest; Rivera (1992) 8 Cal.App.4th
1000, 1007--use of police dog to "search and hold" (bite) possibly armed suspect did not
convert detention into an arrest.)
Particularly in a high-risk situation it may be proper to order a suspect to the ground, handcuff
him, place him in your patrol unit, or even confront him with your gun drawn. (Bowen
(1987) 195 Cal.App.3d 269; Taylor (1986) 178 Cal.App.3d 217; Orozco (1981) 114
Cal.App.3d 435.) Remember that the shorter the period of time such extreme measures are
used, the better.
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Example:
2.14c
Officers were told that Turner, a father of a football player in a high school game on
campus, had threatened one of the coaches and said he would see him after the game.
One coach was warned by a family member that Turner had a gun. When police
arrived in the parking lot, Turner broke away from a group and walked off campus.
One of the officers working security at the game drew his weapon and directed Turner
to put up his hands. A second officer ordered him to the ground, and a third officer
held Turner at gunpoint until he was handcuffed. Turner admitted to having a gun in
his front pocket. HELD: The officers actions taken to safely determine if Turner was
armed were reasonable and appropriate and did not convert the detention into a de
facto arrest. (Turner (2013) 219 Cal.App.4th 151.)
In determining whether the contact was a lawful detention or an unlawful arrest, courts will
look to the "totality of the circumstances" and evaluate (1) the intrusiveness of the detention
(i.e., the methods used by police, and how severely the suspect's liberty was restricted) and
(2) the justification for using the force or restraints that were employed (i.e., the danger posed
to the officer). (Rousseau (9th Cir. 2001) 257 F.3d 925, 929; accord, Antonio B. (2008) 166
Cal.App.4th 435; Celis (2004) 33 Cal.4th 667, 674-675; see also Stier (2009) 168
Cal.App.4th 21, 26-27, stating that officers must employ "the least intrusive means available
under the circumstances.")
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2.15
Example:
Officers who conducted surveillance for two days as part of the ongoing investigation
of a statewide narcotics smuggling ring believed that Celis was concealing drugs or
drug proceeds in a previously deflated tire too large for his van. Celis was stopped as
he was rolling the tire out the back door of his residence toward his accomplice's
truck. Celis was detained at gunpoint, handcuffed, and ordered to sit on the ground
for two minutes while officers searched his residence. HELD: The detention was not
converted into an arrest based on the officers' reasonable use of force and restraint.
(Celis (2004) 33 Cal.4th 667, 675-676.)
Example:
In contacting a suspected drug dealer at a motel room, where the suspect failed to
produce identification and gave inconsistent answers, it remained a "detention," not an
arrest, even though the officer ordered the suspect to place his hands on his head,
unholstered his firearm, moved the suspect to another room, and detained him there
for 17 to 20 minutes. "Neither handcuffing a suspect nor relocating a suspect
automatically turns a detention into an arrest where these actions are reasonably taken
for safety and security purposes." ($109,179 (9th Cir. 2000) 228 F.3d 1080, 1085.)
Example:
Police chased a suspect on foot, tackled him, and "wrestled" with him before
handcuffing him and standing him up. Because the officers used no more force than
was necessary to effectuate the detention, their actions were legal and did not
constitute an arrest. (Johnson (1991) 231 Cal.App.3d 1, 12.)
Example:
Handcuffing a suspected purse-snatcher to a guard-rail for 25 minutes while waiting
for the victim, who had been summoned immediately, to arrive to make an
identification was a valid detention. (Bowen (1987) 195 Cal.App.3d 269.)
Example:
Responding to a 9-1-1 call and believing that Gallegos was the burglary suspect,
police stopped his truck, ordered him out of the cab at gunpoint, handcuffed him, and
transported him in the back of the patrol car to the scene of the burglary. In a § 1983
action, the Ninth Circuit held that detaining Gallegos for the 45 to 60 minutes
necessary to determine if he was the burglary suspect, given the totality of the
circumstances, "fell within the bounds of a permissible investigatory stop." (Gallegos
(9th Cir. 2002) 308 F.3d 987.)
Example:
Following a high-speed chase (85 mph on surface streets), a school district police
officer used his police vehicle to block defendant's car, then got out and pointed his
revolver to detain defendant. HELD: The force used was reasonable to protect the
officer and maintain the status quo. (McHugh (2004) 119 Cal.App.4th 202.)
Example:
Auto burglary suspect, who appeared "real nervous" and began to tense up as if he
were trying to remove his hand from the officer's grasp when officer started to conduct
a patdown, was properly handcuffed before the patsearch. The suspect was larger than
the officer, who feared that the suspect might break free and assault him. (Osborne
(2009) 175 Cal.App.4th 1052, 1062.)
Example:
When suspect, who was validly detained on suspicion of bank robbery, tried to flee,
officer was justified to take him down and handcuff him in order to finish a pat-down
search, which revealed the stolen money. (Brown (1985) 169 Cal.App.3d 159.)
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Example:
It was only a detention, not an arrest, to place suspected DUI driver in back of patrol
car and wait 20 minutes until a more experienced officer arrived and confirmed the
suspect's condition. (Gorak (1987) 196 Cal.App.3d 1032.)
Example:
It was still a detention, and not an arrest, for a lone officer to pat down, handcuff and
transport two rape suspects to the victim in a nearby hospital, despite the use of
restraints and the fact that the detention lasted about 30 minutes. (Carlos M. (1990)
220 Cal.App.3d 372.)
Example:
It was only a detention where officer approached a suspect who had been seen
entering a woman's apartment and who was found in her bed, even though the officer
drew his gun and ordered the suspect not to move. (Clair (1992) 2 Cal.4th 629, 679.)
Example:
Ordering suspects from their car at gunpoint, handcuffing them, and placing them in a
patrol car to wait for identification by victim did not convert "high risk" detention into
de facto arrest. (Alexander (9th Cir. 1995) 64 F.3d 1315, 1320; Soun (1995) 34
Cal.App.4th 1499, 1516-1520.)
Example:
It was a detention, and not a de facto arrest, to place traffic violator in the patrol car
for officer safety during a vehicle inventory. (Torres (2010) 188 Cal.App.4th 775.)
Note that if a detention turns into a de facto arrest based on the continued use of restraints or
transportation of the suspect, the seizure is lawful so long as probable cause objectively exists
preceding the arrest. (Wood v. Emmerson (2007) 155 Cal.App.4th 1506, 1525-1526.)
F.
Moving the Suspect
Be extremely careful about transporting a suspect during a detention. Avoid it unless it is
truly necessary.
You may, of course, move a suspect a short distance for your protection (Courtney (1970) 11
Cal.App.3d 1185--crowd gathering) or to avoid embarrassment to the suspect (Rosenberg (5th
Cir. 1972) 458 F.2d 1183--public place). But requiring the suspect to accompany you to
another location or interrogation room without valid consent or compelling reason may turn
your detention into an unreasonable arrest. (Hayes (1985) 470 U.S. 811.)
For example, picking someone up and taking him downtown for questioning--without consent
or preexisting probable cause--will constitute an illegal arrest and "taint" whatever follows,
such as a confession. (Dunaway (1979) 442 U.S. 200; Lozoya (1987) 189 Cal.App.3d 1332;
Gonzalez (1998) 64 Cal.App.4th 432, 439; see Kaupp (2003) 538 U.S. 626.)
Example:
Officers picked up suspect, took him downtown for questioning, and eventually
obtained a confession. The officers contended that the suspect was just being
"detained" for questioning, but the Supreme Court disagreed, ruling that the
movement resulted in the arrest of the defendant. HELD: Confession suppressed.
(Dunaway (1979) 442 U.S. 200; see also Royer (1983) 460 U.S. 491; Dung T. (1984)
160 Cal.App.3d 697.)
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Example:
At least three officers woke up a 17 year old in his bedroom at 3:00 a.m., told him
they needed "to go and talk," placed him in handcuffs, took him outside in January
without shoes and wearing only boxer shorts, transported him in a patrol car to the
crime scene, and then drove him to the Sheriff's office for questioning. HELD: This
was an unlawful arrest. Any confession "obtained by exploitation of" the illegal arrest
would have to be suppressed. (Kaupp (2003) 538 U.S. 626.)
Example:
Where suspected female drug dealer was detained outside apartment for 35-40
minutes, ordered not to speak to companion or touch anything, then taken into
darkened bedroom in presence of three male officers for examination by ultraviolet
light, the detention became an arrest. (Baron (9th Cir. 1988) 860 F.2d 911.)
Example:
It was a detention, and not an arrest, for officers to transport defendant in a police car
to her residence to determine why she had reported that she had "done something bad"
to her children. (Charley (9th Cir. 2005) 396 F.3d 1074, 1081.)
Example:
It did not constitute an illegal arrest or detention of a minor for police to drive him to
the station 90 minutes away for questioning, having first obtained consent from him
and his mother. (Gilbert R. (1994) 25 Cal.App.4th 1121, 1125.)
Similarly, if an in-field identification or "showup" is desired, you should bring the victim or
witness to the scene of the detention if at all possible. As a general rule, the courts do not
want you to transport the suspect to the victim.
However, there are exceptions to this general rule. The major exceptions are:
-
when you have probable cause to arrest the suspect;
-
when you have the voluntary consent of the suspect;
Note:
The consent can be voluntary even though it is conditional.
-
when the victim cannot be moved; or
-
when transporting the suspect to the victim is the best (or only) practical alternative
(e.g., no other officers available). (Harris (1975) 15 Cal.3d 384; Rafael (1982) 132
Cal.App.3d 977; Gatch (1976) 56 Cal.App.3d 505.)
Example:
It was reasonable for a single officer to handcuff two Hispanic suspects, who had no
identification and could not speak much English, and to transport them for an in-field
"show-up" at a nearby hospital where a traumatized gang-rape victim was undergoing
a lengthy examination. (Carlos M. (1990) 220 Cal.App.3d 372.)
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G.
SEARCH AND SEIZURE - PERSONS
Time Limitations
"Time" or the "duration" of a detention is another factor you must be aware of. A detention is
temporary and may last no longer than is necessary to resolve the circumstances that justified
its initiation. In other words, a detention can be legal at its beginning and then become illegal
if you extend it beyond what is reasonably necessary under the circumstances. On the other
hand, there is no set time limit for an investigative detention. The key is simply whether you
diligently took reasonable steps to confirm or deny your suspicions. (Sharpe (1985) 470 U.S.
675, 686-688.)
1.
Increased Suspicion
Many times, circumstances will come to light during a detention (such as demeanor, conduct,
observation of suspicious objects) that will change its focus, justify extending its duration, or
provide probable cause for arrest. (Sharpe (1985) 470 U.S. 675; Russell (2000) 81
Cal.App.4th 96, 102-106.)
Example:
A stop for erratic driving was properly extended to about 25 minutes to resolve
possible drug-trafficking, given an overwhelming masking odor, conflicting answers,
and other circumstances. (Russell (2000) 81 Cal.App.4th 96, 101-107; Mayo (9th Cir.
2005) 394 F.3d 1271, 1276 [detention permissibly extended to 40 minutes as evidence
of possible criminal activity continued to unfold].)
Example:
A detention of a suspected drug dealer at a motel for 17 to 20 minutes was reasonable
where he could not produce any identification and gave inconsistent answers.
($109,179 (9th Cir. 2000) 228 F.3d 1080, 1084-1086.)
Example:
A traffic stop, originally based on an excessively loud muffler, was validly prolonged
to ascertain positive identification and vehicle ownership where the driver did not
have a license, the car was not registered to any of the three male occupants, the
occupants gave conflicting answers to questions, etc. (Valencia (1993) 20
Cal.App.4th 906, 918-919.)
Example:
A citizen reported and described a suspicious-acting stranger in a residential area
where many daytime burglaries had occurred. Later, the same citizen reported that the
suspect was "concealing something under his coat." An officer responded and spotted
the suspect with large items in his pockets; a portion of a camera was visible. The
officer detained the suspect, told him about the report and started asking questions,
which led to the discovery of stolen property. HELD: The detention, although based
on "slight" facts, was nevertheless valid, and the 15-20 minutes it took to resolve the
matter was reasonable under the circumstances. (Backey (1978) 85 Cal.App.3d 1020.)
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Example:
During an equipment violation stop, the officer noticed an air compressor on the back
seat in sufficiently suspicious condition to justify searching it, even though he was not
aware that any such compressor had been reported stolen. (Gorak (1987) 196
Cal.App.3d 1032.)
Example:
Without knocking or saying anything, a man walked into a house where officers were
executing a search warrant. He denied living there, but was unable to give a reason
for being there. A pat search revealed a large wad of bills ($3100). Although he
produced some identification, there was reason to suspect its accuracy. The court held
that it was reasonable to extend the detention for the hour it took to make telephone
calls and run checks, to conduct a consent search of the man's vehicle (where more
cash was found), and to consult with each other and other personnel to decide what
course of conduct to follow, since their suspicions had been increasing and all their
steps were taken diligently in an effort to determine the man's connection with the
drug-dealing residence, i.e., to resolve the original reason for the detention. (Huerta
(1990) 218 Cal.App.3d 744.)
2.
Decreased Suspicion
On the other hand, if the suspect answers all questions about the suspicious circumstances
satisfactorily, so that your suspicion decreases or disappears, you must let him go.
Example:
An officer made stop for erratic driving, but determined the suspect was not under the
influence of alcohol or drugs. Nevertheless, the officer then asked for the suspect's
driver's license. When it was produced and was in good order, the officer went on to
ask for the registration. Observations which the officer made as the suspect retrieved
the registration from the glove compartment led to his arrest for possession of a
concealed firearm. However, the court threw out the observation, noting that at the
time it was made, the officer "had no legitimate reason for detaining [the suspect]
further or for pursuing any further investigation of him." (Bello (1975) 45 Cal.App.3d
970.)
Of course, it is possible for your original suspicion to dissipate, while suspicion about a
different or unrelated offense arises. There is no problem in "switching offenses" this way, as
long as the original detention isn't unlawfully prolonged before your suspicion about the
second offense begins.
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Example:
3.
An officer validly stopped a vehicle to determine whether the passenger was a murder
suspect who was reportedly in the area. When he contacted the individual, he realized
immediately that he was not the murder suspect. At the same time, however, the
officer observed an open container of beer. HELD: It was proper to continue the
detention (order occupants out, obtain ID, etc.) for the alcohol violation. (Monroe
(1993) 12 Cal.App.4th 1174, 1194-1195.)
Field Interrogation Cards
Actually detaining someone (as opposed to obtaining their voluntary cooperation) for the
purpose of obtaining information about them, or photographing them, is illegal unless you
have a specific basis for believing the person is involved in criminal activity. (Rodriguez
(1993) 21 Cal.App.4th 232, 238-240.)
Furthermore, extending a detention in order to fill out a field interrogation card may or may
not be reasonable, depending (like everything else) on all the circumstances. Generally
speaking, if there is something specific which might connect the person to a crime, filling out
a field interrogation card will be proper.
Example:
Officer received report of a rapist who had fled in a small yellow vehicle. Twenty
minutes later he came upon a yellow Volkswagen stuck on railroad tracks, off the
nearest street and five miles from the rape. The officer properly detained the driver,
but did not cite him since he had a plausible explanation and valid identification.
However, the officer properly extended the detention to fill out a field interrogation
card. (Harness (1983) 139 Cal.App.3d 226.)
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H.
2.19
Miranda Warnings
The general rule is that you do not have to give Miranda warnings to someone you have
detained (1) on reasonable suspicion, (2) for a "cite and release" offense, or (3) for
"inquiries"--especially about identity--made at the scene of a crime. (Berkemer (1984) 468
U.S. 420; Epperson (1986) 187 Cal.App.3d 115; Clair (1992) 2 Cal.4th 629, 679.)
Miranda warnings are never necessary unless you have both "custody" and "interrogation." A
person who is being "detained"--even though he is not free to leave--is not normally
considered to be in Miranda "custody," which is defined as being under actual arrest or
subject to equivalent physical restraints. (Stansbury (1994) 511 U.S. 318, 322.)
Example:
Two officers, responding to the scene of a reported early morning burglary, spotted
near the scene a lone male who partially matched broadcast descriptions of one of the
suspects. They stopped him and asked him where he was coming from, and his
answer was later used against him at trial. HELD: His answer was admissible, even
though the officers had not advised the suspect of his Miranda rights, because he was
only being detained and was not in "custody." (Fulcher (1987) 194 Cal.App.3d 749.)
On the other hand, if, at the time of questioning, the level of force you use on the suspect-regardless of whether such force is reasonable or unreasonable--is equal to what you would
use during an actual arrest, then "custody" exists for Miranda purposes.
Example:
I.
Suspect should have been Mirandized because he was "surrounded by at least four
officers, several vehicles and a helicopter, and held at gunpoint" when "questioned" by
officer (who showed suspect suspicious items of property). (Taylor (1986) 178
Cal.App.3d 217, 229-230.)
Officer Safety Detentions
Reasonable and articulable concerns for officer safety justify a lawful detention. A detention
based on officer safety concerns is lawful "when an individual's actions give the appearance
of potential danger to the officer." (Mendoza (2011) 52 Cal.4th 1056, 1081.) You "need not
be absolutely certain that the individual is armed," but a reasonable person would have to be
justified in the belief that your safety or the safety of others was in danger. (Terry (1968) 392
U.S. 1, 27.)
Officer safety is also grounds for detaining persons not the subject of an investigation if their
detention is necessary for the officers to proceed in their investigation. (Steele (2016) 246
Cal.App.4th 1110.)
Example:
Deputies were attempting to investigate whether a car with expired registration tags
was being driven by the registered owner wanted on a felony arrest warrant. The car,
followed by a second car, pulled into a driveway hidden from the highway in an unlit
area. The deputies activated their emergency lights and stopped behind the second
car, blocking its egress. HELD: Detaining the second car was lawful. "Officer safety
is a weighty public interest warranting a brief detention . . . to assure that defendant
did not present a danger to the deputies while they approached and investigated the
lead vehicle and its occupants." (Steele (2016) 246 Cal.App.4th 1110.)
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SEARCH AND SEIZURE - PERSONS
Searches During Detentions (Patdowns/Frisks)
During a detention, you have no power to conduct a general, full, exploratory search of the
suspect. (Of course, if the detainee is on parole, PRCS, searchable probation, or mandatory
supervision with a search term, you are entitled to search him without any suspicion of
criminal activity--see Ch. 5-VII.)
However, you may conduct a patdown or limited weapons search of someone you have
detained, but (1) only for weapons, (2) only of his outer clothing, and (3) only if you have
specific facts that would make a reasonable officer fear for his own or others' safety. (Terry
(1968) 392 U.S. 1.) "Standard procedure" is not good enough. (Santos (1984) 154
Cal.App.3d 1178.) You must reasonably suspect that the person is armed or may be armed
(Dickerson (1993) 508 U.S. 366, 373; Limon (1993) 17 Cal.App.4th 524, 532), although you
do not need to be absolutely certain (Terry (1968) 392 U.S. 1, 27; Mendoza (2011) 52 Cal.4th
1056, 1081; Osborne (2009) 175 Cal.App.4th 1052, 1061; H.M. (2008) 167 Cal.App.4th 136,
143).
The courts are, generally, quite supportive of your safety. (Parrott (2017) 10 Cal.App.5th
485--"a police officer has a strong need to practice caution and self-protection when on
patrol"; Wilson (1997) 59 Cal.App.4th 1053, 1060-1061; Frank V. (1991) 233 Cal.App.3d
1232, 1238.) But at the very least you need a potentially dangerous situation to justify a
patdown. Note that the test is "objective" and your actual "subjective" fear will not determine
whether a patdown was lawful. (See Osborne (2009) 175 Cal.App.4th 1052, 1061.)
Example:
It was illegal for a deputy to frisk a man who was sitting in a stopped car, engine
running, in the middle of a one-lane rural dirt road, even though the man had no
license or other identification, refused to let the deputy search his vehicle, and was
nervous and sweating, and even though the deputy had discovered a film canister
containing baking soda. None of these factors would lead an officer to reasonably
believe that a weapon might be used against him. Despite the fact that every
encounter between a citizen and a police officer holds some potential that the citizen
may be armed, "specific and articulable" facts showing that the suspect may be armed
and dangerous are necessary. (Dickey (1994) 21 Cal.App.4th 952, 956.)
Note also that a suspect's exercise of his Fourth Amendment rights, without additional factors
indicating that the suspect might be armed or dangerous, will not provide grounds for a
patsearch. (In re H.H. (2009) 174 Cal.App.4th 653, 660.)
Example:
A patrol officer stopped a minor for riding a bicycle at night without proper lighting in
violation of Vehicle Code section 21201. The minor complied with the officer's
requests to step back from the bicycle and take off his backpack. Without the officer
first asking, the minor said that he was not on probation, which the officer thought
was odd. Concerned that the minor might have a weapon, he said he would be
conducting a patsearch, and the minor said that he did not give his consent to search.
The officer considered both statements "warning flags." He found a firearm in the
minor's pocket. HELD: The patdown search was not justified. A refusal of consent
to a search cannot be the sole basis for reasonable suspicion that a suspect is armed or
dangerous. (In re H.H. (2009) 174 Cal.App.4th 653.)
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If a patdown search is challenged in court, you must be certain to articulate the objective
reasons that the person you are dealing with poses a threat to officer safety. In one case, the
appellate court held that a patdown search of a resident and known drug user sitting on the
front porch when officers arrived to conduct a narcotics-related probation search of his
roommate was unwarranted because the officer testified (on cross-examination) that he had
no specific reason to believe that the individual was armed or dangerous. (Sandoval (2008)
163 Cal.App.4th 205.) The court reached this holding despite the fact that the record was
replete with testimony regarding the real danger posed to officers conducting a narcotics
residence search, particularly when another resident is on the scene.
Note that Sandoval is an anomaly in long-established precedent that such a protective search
is lawful. (See Thurman (1989) 209 Cal.App.3d 817; Glaser (1995) 11 Cal.4th 354, 367368.) By and far, with proper articulation of the circumstances, a patdown search for officer
safety will be recognized as lawful.
What then is sufficient to justify a patsearch? All that is required is a "substantial possibility"
that the individual is armed: you do not need the "'quantum of evidence'" necessary for arrest
on a weapons charge (Osborne (2009) 175 Cal.App.4th 1052, 1061), and you do not need to
wait for an overt act of hostility before you act to neutralize a perceived threat (Rios (2011)
193 Cal.App.4th 584, 599). Relevant factors include the nature of the crime being
investigated, a bulge in the detainee's clothing, movement toward a place where a weapon
could be concealed, or knowledge that the detainee was previously found to be armed.
(Osborne (2009) 175 Cal.App.4th 1052, 1061; see Simpson (1998) 65 Cal.App.4th 854, 862-"'Illegal drugs and guns are a lot like sharks and remoras. And just as a diver who spots a
remora is well-advised to be on the lookout for sharks, an officer investigating [a drug
operation] would be foolish not to worry about weapons.'")
Example:
Officer made a DUI stop at night for erratic driving. The driver provided false
identification, admitted he had recently done time for robbery, and wore a bulky jacket
that he had trouble keeping his hands out of. HELD: It was legal to order him out,
conduct a patdown, and remove what felt like syringes from his jacket pockets.
(Autry (1991) 232 Cal.App.3d 365; see also Mimms (1977) 434 U.S. 106, 112--bulge
under sportcoat was enough to justify patdown.)
Example:
Patdown of a man and woman in a parked car upheld where lone officer was
responding to a reported "prowler" late at night in a closed business district, occupants
could not produce identification, and they spoke only in Spanish, which he could not
understand. (Castaneda (1995) 35 Cal.App.4th 1222, 1230.)
Example:
While on routine patrol, two officers spotted a young man looking into two parked
cars in an alley where many complaints of criminal activity--including vehicle
tampering--had originated. As the officers drove by slowly, the man tried to stay out
of view behind a dumpster. When they approached and spoke to him, he became very
nervous, boisterous, angry and antagonistic--"borderline combative." The man was
nearly 6 feet tall and 190 pounds. HELD: The patdown was lawful. The officers were
not required "to await an actual assault before assuring themselves that the detainee
was not armed with a lethal weapon." (Michael S. (1983) 141 Cal.App.3d 814.)
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Example:
At 1:15 a.m., officers stopped a vehicle that had been traveling slowly with its lights
out in a high-crime area. The driver got out of the car to meet the officers, leaving
two other males inside. When asked for his license, the driver said it was in his sock.
Fearing for his safety, the officer conducted a quick, cursory patdown search of the
driver and found a knife inside the sock. The patdown was justified. (Barnes (1983)
141 Cal.App.3d 854; Guillermo M. (1982) 130 Cal.App.3d 642.)
Example:
Officers assigned to a gang detail in a "stronghold" area covered by a gang injunction
were citing several gang members for tobacco possession and investigating a recent
gang-related shooting when two of the officers saw 14-year-old H.M. sprint through
heavy traffic towards them, in violation of Vehicle Code section 21954. The juvenile
was sweating profusely and looking behind him as if trying to get away from
something, and he appeared confused and nervous. One of the officers knew H.M. to
be a gang member. H.M. was detained and pat-searched for officer safety. HELD:
The patdown was lawful based on the juvenile's unusual and suspicious behavior. It
was not merely a matter of a minor traffic infraction: a known member of a street
gang was running through traffic in a manner that suggested he was fleeing criminal
activity in a gang stronghold. (In re H.M. (2008) 167 Cal.App.4th 136. Note: At
pages 146-147, this case has one of the best published discussions of the dangers that
can be taken into account when officers are confronting members of criminal street
gangs.)
Example:
An officer properly detained a male who was walking along a street in a high burglary
area, carrying a television and tan jacket, which were items that had been reported
stolen from a nearby residence earlier that same day. A patdown was justified. "It is
reasonable for an officer to believe that a burglar may be armed with weapons, or
tools such as knives and screwdrivers which could be used as weapons, and that a
patdown is necessary for the officer's safety." (Myles (1975) 50 Cal.App.3d 423, 430;
see also Osborne (2009) 175 Cal.App.4th 1052, 1060 [auto burglary suspect may
reasonably be expected to possess tools that can used as weapons].)
Example:
An officer, who was validly inside a motel room and who had a legal basis to detain
one of the occupants, was justified in patting-down clothing for possible weapons
before handing the clothing to the detainee. (Wright (1988) 206 Cal.App.3d 1107.)
Example:
During the execution of a narcotics search warrant, it was legal for an officer to patdown a man who was sitting on a couch in the living room, even though (1) the man
was completely passive and not saying or doing anything threatening, (2) there was
nothing beyond the inherent danger of the situation to specifically indicate that the
man might be armed and dangerous, and (3) the search warrant did not authorize a
search of his person. (Thurman (1989) 209 Cal.App.3d 817; see also Rios (2011) 193
Cal.App.4th 584, 599--okay to pat-down occupant in probationer's residence during a
probation search/home visit based on possible gang member status and evasive and
belligerent manner; compare with Sandoval (2008) 163 Cal.App.4th 205, 212-officer's testimony that he did "not suspect defendant was engaged in criminal
activity" and "had no reason to believe defendant was armed" negated reasonable
grounds for Terry patdown.)
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2.20c
Example:
An officer who responded to a report of several suspicious persons in a Taco Bell
parking lot was justified in detaining and immediately patting-down one male who
turned away when the officer arrived because the officer saw a large heavy object in
the suspect's jacket pocket that he reasonably believed might be an illegally concealed
weapon. (Miles (1987) 196 Cal.App.3d 612.)
Example:
An officer who intended to ask a few questions of a man during a consensual street
encounter was entitled to grab the man's wrist when he started to reach into a pocket
that had a weapon-like bulge. (Rosales (1989) 211 Cal.App.3d 325, 330.)
Example:
It was legal for an officer, responding to a "panhandler" complaint, to pat-down the
suspect where he saw a large bulge in the front waistband of the suspect's trousers.
"Our courts have never held that an officer must wait until a suspect actually reaches
for an apparent weapon before he is justified in taking the weapon. Such a holding
would eviscerate the reason, officer safety, for a limited patdown during a Terry stop."
(Snyder (1992) 11 Cal.App.4th 389, 393.)
Example:
Officer could lawfully pat-down a person who put his hands back inside his bulky
jacket after being told to take them out, at least where the person being contacted was
in a gang neighborhood at night and had just left a house known for gang activity.
(Frank V. (1991) 233 Cal.App.3d 1232, 1240.)
Example:
It was proper to detain and pat-down a man who had been standing on a corner in a
high narcotics area for several minutes, where two other persons nearby, believed to
be sellers, had yelled "rollers" to him, after which he had started to leave, then turned
towards the approaching officers and reached into his jacket. (Lee (1987) 194
Cal.App.3d 975, 982.)
Example:
Officer was justified in patting-down a suspect for weapons where the officer and his
partner were outnumbered, had a basis for believing the suspect was dealing drugs,
knew that drugs dealers often carry weapons, and had first-hand knowledge about the
prevalence of drugs and weapons in the area. "The connection between weapons and
an area can provide further justification for a pat-search." "'It is not unreasonable to
assume that a dealer in narcotics might be armed' and subject to a pat-search." (Limon
(1993) 17 Cal.App.4th 524, 534-535; see also $109,179 (9th Cir. 2000) 228 F.3d
1080, 1086, where the Ninth Circuit, in talking about a suspected drug dealer, said
that the officer's experience "provided him with the knowledge that narcotics suspects
are often armed and dangerous . . . .")
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Example:
It was proper to pat-down the male driver of a car containing two other people named
in a narcotics search warrant on their way back to the premises named in the warrant
based on the "apparent close physical and functional association" between them and
the high danger inherently involved in executing a narcotics warrant. (Samples (1996)
48 Cal.App.4th 1197, 1208-1213.)
You may also conduct a limited search for weapons on a person you are going to transport in
your police vehicle, even after a simple traffic violation. (Willy L. (1976) 56 Cal.App.3d 256,
261.) Remember, however, that if you have no duty to transport the person--for instance, if
you are offering to give him a ride as a favor--then you must tell the individual that he has the
right to refuse, and that if he accepts the ride, he will be subjected to a search for weapons.
(Scott (1976) 16 Cal.3d 242.)
Example:
An officer stopped a vehicle on a busy freeway at night because of faulty registration.
Neither the driver nor the passengers had a valid driver's license, and the vehicle had
to be towed. There was no obligation to advise the occupants that they could refuse
the ride, because the officer had a duty to transport them. It was too dark and
dangerous, and also illegal, for them to walk. (Tobin (1990) 219 Cal.App.3d 634.)
In addition to needing a factual basis for patting-down a detainee, you must also be careful
not to exceed the permissible "scope" of the frisk. Remember that you are authorized to look
for weapons only, so your search must be limited to that purpose. (Dickerson (1993) 508
U.S. 366, 373.)
Naturally, if you discover a weapon, or a suspected weapon, you may seize it. Likewise, if
you are not sure whether the object is or is not a weapon, you are entitled to check it out, that
is, to "search" further, for instance, by feeling it more thoroughly, or by reaching into the
pocket where it is located.
Example:
During the course of a patsearch for weapons, officer felt a hard, rectangular object in
the suspect's pocket that he could not recognize and thought might be a knife. It was
legal either to reach into the pocket and remove the object or to simply widen the
pocket and look inside. "The police are not required to grab blindly after a frisk
reveals a possible weapon. A blind grab could risk injury either to the officer or the
suspect." (Limon (1993) 17 Cal.App.4th 524, 535-536.)
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However, once you realize or decide that an object is not a weapon, you must move on,
because any additional feeling, grabbing, or manipulating of the item is outside the scope of a
Terry patdown for weapons and will be considered an illegal search, resulting in the
suppression of evidence.
In other words, you are entitled to seize any "non-threatening contraband" which you detect
during a protective patdown search only if the search stays within the bounds marked by
Terry--meaning that the contraband nature of the object becomes "immediately apparent" to
you, through your sense of sight, smell or touch, while you are still in the process of searching
for weapons. (Dickerson (1993) 508 U.S. 366.)
Example:
During the patdown of a suspected narcotics user/buyer, an officer felt a small lump in
the suspect's jacket pocket. When he "examined it with his fingers," it slid and felt
like a lump of crack cocaine in cellophane. Accordingly, the officer reached into the
pocket a retrieved a small plastic bag containing some crack cocaine. HELD: It was
an illegal search for the officer to squeeze, slide, and otherwise manipulate the
contents of the jacket pocket because when he did that, he had already concluded that
the pocket did not contain a weapon. (Dickerson (1993) 508 U.S. 366, 379.)
Example:
During a limited patdown for weapons, a deputy felt a soft object which he squeezed
enough to conclude it was plastic with something in it. He reached into the detainee's
pocket and retrieved a baggie with some marijuana and cocaine. HELD: The seizure
was unlawful. "Feeling a soft object in a suspect's pocket during a pat-down, absent
unusual circumstances, does not warrant an officer's intrusion into a suspect's pocket
to retrieve the object." (Dickey (1994) 21 Cal.App.4th 952, 957, quoting a 1970
California Supreme Court case.)
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Lastly, there are two other ways to lawfully conduct a patsearch--or a complete search--for
weapons or drugs. The first is if you have probable cause to believe such an object is on the
person. This is because your probable cause also provides probable cause to arrest, and the
search is then justified as incident to that arrest, even though the search comes first. (Valdez
(1987) 196 Cal.App.3d 799; Limon (1993) 17 Cal.App.4th 524, 538.)
Example:
Officers patrolling a high narcotics area observed two men attempt to exchange
money for a plastic baggie when they were interrupted by someone yelling, "Police."
The "buyer" fled. The "seller" (Mims) put the baggie in his front pants pocket, walked
up the to porch of a nearby residence and knocked. One officer approached Mims,
ascertained that he did not live there, patted the pants pocket, felt some small chunky
material, and pulled out the baggie, which contained rock cocaine. HELD: This
search was legal as incident to Mim's arrest, even though it preceded his formal arrest,
because the facts known to the officer (exchange, lookout, baggie, flight,
neighborhood), in combination with his expertise, provided probable cause to arrest.
(Mims (1992) 9 Cal.App.4th 1244.)
Example:
Officer who smelled PCP as he approached suspect was entitled to search him for it.
(Divito (1984) 152 Cal.App.3d 11.)
Example:
An officer, upon discovering a hide-a-key in the pocket of a suspected drug dealer he
was patting down, acquired probable cause to arrest. Therefore, he was then entitled
to open (search) the key container incident to the custodial arrest, even though it had
not actually taken place yet. "An officer with probable cause to arrest can search
incident to the arrest before making the arrest." (Limon (1993) 17 Cal.App.4th 524,
538.)
The second is if you obtain a valid consent from the suspect. (Fuentes (9th Cir. 1997) 105
F.3d 487, 489--"Reaching into Fuentes's pocket did not have to be justified as a Terry frisk,
because Fuentes consented to it.")
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K.
Seizures During Detentions
1.
In General
2.21
The rule for seizures during detentions is pretty much the same as it is for searches: You may
seize any weapon or other hard object usable as a weapon which you lawfully discover during
a detention or patdown, but seizure of any "non-weapon" or "non-threatening" object will be
illegal unless you have consent or probable cause to believe it is contraband.
2.
Plain View, Smell or Touch
In general, if you see a weapon, some contraband, or evidence of a crime in plain view during
a detention, you are entitled to seize it without any further justification. This is because
observing something in plain view is not considered a "search." (Horton (1990) 496 U.S.
128.)
The same is true if you become aware of contraband or evidence of a crime through your
sense of smell or (during a lawful patdown) touch. (Dickerson (1993) 508 U.S. 366.)
Example:
During a patdown, the officer felt an unusual lumpy object by the suspect's knee. In
combination with other suspicious factors the officer had already discovered (the
smell of methamphetamine, a gram scale, a small empty baggie, and beepers) this
provided probable cause to arrest. Therefore, it was legal to seize the suspected
contraband. (Dibb (1995) 37 Cal.App.4th 832, 837.)
Example:
When pat-searching a detainee for weapons, an officer felt a clump of small resilient
objects. He believed, based on his experience, that the objects were felt heroin-filled
balloons. Because he now had probable cause to arrest, it was legal to reach inside the
suspect's jacket and retrieve two clear bags, each containing 50 rolled balloons. (Lee
(1987) 194 Cal.App.3d 975.)
Example:
Minor denied that he was involved in a recent carjacking and that he was in possession
of any keys. The officer who conducted a lawful patdown search pulled out what felt
like a set of keys in the minor's pocket. HELD: The officer had probable cause at the
time of the "plain feel" search to believe that the keys were evidence linking the minor
the carjacking based on the minor's similarly to the description of one of the suspects,
his repeated "inspection" of the stolen vehicle, a police dog's tracking a scent inside
the stolen truck vehicle to the minor, and the minor's denial of having any keys in his
possession. (Lennies H. (2005) 126 Cal.App.4th 1232, 1238.)
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Example:
While patting-down a man who was present in a house where a search warrant was
being executed, an officer felt a large bulge in the man's jacket. Believing that it
might be a gun, he put his hand in the pocket and felt the object, which he then
recognized as very large rocks of cocaine. He retrieved the cocaine, and the court
upheld the seizure. (Thurman (1989) 209 Cal.App.3d 817.)
Example:
An officer responding to a "panhandler" complaint noticed a large bulge in the
suspect's front waistband. For officer safety, he pat-searched the suspect, concluded
that the object was a bottle, and withdrew it. HELD: The officer had the right to feel
and retrieve the bottle (a full fifth of brandy) as it was a potentially dangerous weapon.
(Snyder (1992) 11 Cal.App.4th 389, 392-393.)
3.
Containers
If you come across a container on the person you are detaining, you are entitled to seize it and
open it, as long as it is reasonable for you to think it is a weapon or contains a weapon.
Example:
An officer was alone in a motel room with a female suspect whose companion had
been armed with a large knife the day before. When the officer turned his back, the
suspect grabbed her make-up bag. Because it was reasonable to suspect she was
arming herself, the officer was entitled to seize the bag and, because it was heavy and
possibly contained a gun, to open it. (Flippin (9th Cir. 1991) 924 F.2d 163, 166.)
Example:
During the course of a patsearch for weapons, an officer felt in the suspect's pocket a
hard rectangular object that he thought might be a knife. It was legal for him either to
reach into the pocket and remove the object or simply to widen the pocket and look
inside. "The police are not required to grab blindly after a frisk reveals a possible
weapon. A blind grab could risk injury either to the officer or the suspect." (Limon
(1993) 17 Cal.App.4th 524, 535-536.)
Once again, however, beware of the situation where you detect a container during a lawful
patdown but do not believe or suspect that it contains a weapon. Since a pure detention does
not give you the right to conduct any search at all, and since a lawful patdown only gives you
the right to conduct a limited search for weapons, seizing and/or searching such a container
will normally be illegal.
However, there is an exception (in addition to "consent"), namely, when you have probable
cause to believe there is contraband in the container. Probable cause may exist by what you
lawfully see, smell or touch.
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In other words, it is legal for you to seize a container and/or to open (search) it as long as: (1)
the surrounding circumstances are sufficient to provide probable cause (not just reasonable
suspicion) that the container holds contraband, and (2) you obtained that probable cause
lawfully during, and within the lawful scope of, the detention or limited weapons search.
(Dickerson (1993) 113 S.Ct. 2130, 2137; Dibb (1995) 37 Cal.App.4th 832, 836.)
Technically, the reason that it is legal to search (open) a container in this situation is because
if you have probable cause to believe there is contraband inside the container, then you also
have probable cause to arrest the detainee for possessing the contraband; and if you can
legally arrest him, then you are entitled to conduct a full search of his person, including
containers, incident to that custodial arrest--even though the arrest hasn't formally taken place
yet! (Valdez (1987) 196 Cal.App.3d 799.)
Example:
During execution of a narcotics search warrant at an auto repair yard, an officer
legally detained a man who had tried to flee. While patting him down, the officer felt
a film canister which he knew was not a weapon, but which, in his experience, either
contained drugs or was empty, since no photographic equipment was around. He
retrieved it and opened it, looking for drugs. HELD: The officer acted illegally. A
search for contraband, as opposed to weapons, may be carried out during a detention
only when probable cause to arrest already exists, even though the search may
momentarily precede any arrest. A film canister, which admittedly might be empty,
does not sufficiently "proclaim its contents" and therefore is not equivalent to a
"heroin balloon, a paper bindle, or a marijuana-smelling brick-shaped package, which
may be seized upon observation." "Rather, the canister is akin to a common product
like a pill bottle, a pack of cigarettes, or a plastic bag which may not be seized merely
because it may also be commonly used to store narcotics." Because the facts here did
not provide the officer with probable cause to arrest, the patdown search was limited
to weapons and could not include the interior of a pocket where the officer did not
believe a weapon was located. (Valdez (1987) 196 Cal.App.3d 799.)
However, even a common container can constitute a suspicious circumstance, capable of
contributing to the totality of the circumstances necessary for probable cause, depending on
the total factual context in which the container is observed and the prior experience of the
officer with containers of that type.
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Example:
The officer's prior experience with narcotics inside a key case, plus the observed
conduct of the suspect (removing something from the wheel-well of a pickup truck,
then engaging in an apparent hand-to-hand exchange, then replacing something in the
wheel-well, all in a location well known for drugs), gave the officer probable cause to
arrest Limon for possessing drugs as of the moment the officer discovered a hide-akey box in Limon's pocket, even though a hide-a-key is a "common" container.
Therefore, he was then entitled to open (search) the key container incident to the
custodial arrest, even though the arrest had not actually taken place yet. "An officer
with probable cause to arrest can search incident to the arrest before making the
arrest." (Limon (1993) 17 Cal.App.4th 524, 538.)
Example:
During a vehicle stop, the suspect tried to hide a paper bag which the officer feared
might contain a weapon. He felt the bag from the outside to see if it contained a
weapon, and felt what he believed, based on his experience, to be numerous quarter
bags of heroin. He could lawfully open the bag and seize the contents. "No
reasonable expectation of privacy attaches to containers whose contents are readily
discernible through use of some sense other than sight." (Williams (D.C. Cir. 1987)
822 F.2d 1174.)
Example:
A suspect who was removing identification from his jacket for an officer revealed a
"bindle" which the officer recognized as a receptacle for drugs -- usually cocaine. The
officer was entitled to seize it and open it because its manner of packaging, together
with the suspect's efforts to conceal it, "announced its contents." (Courcy (1987) 739
P.2d 98.)
Example:
During a traffic stop, a "neatly folded squared piece of paper" fell from the driver's
wallet to the ground. The experienced officer recognized it as a probable bindle of
cocaine or heroin. Therefore it was proper to seize the bindle. (Lilienthal (1978) 22
Cal.3d 891.)
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2.22c
Example:
A veteran police officer saw a "bundle" of tiny, empty, plastic baggies in a man's
clutch purse in a parked car under quite suspicious circumstances (four occupants had
been ducking up and down, only one had any identification, they were miles away
from their purported destination, they were in a high drug area of Sacramento in a car
registered in Los Angeles, and there was a prescription bottle in the same purse).
Under these circumstances, the officer had probable cause to search the purse and
baggies. (Nonnette (1990) 221 Cal.App.3d 659.)
Example:
During a consensual encounter, the officer observed one-half inch of a "cylindrical
rolled-up" plastic baggie sticking out of the pocket of a known narcotics user he was
talking to. Based in part on the officer's substantial experience in the identification
and packaging of controlled substances, the observation gave him probable cause to
arrest. (Gonzales (1989) 216 Cal.App.3d 1185.)
Example:
An officer seized "a large object about the size of a baseball wrapped in aluminum"
from a detainee's pocket, thinking it contained narcotics. The seizure was illegal,
however, because there was no probable cause, i.e., nothing distinctive about the
object, such as its size, shape or the manner in which it was being carried, that would
enable a reasonable person to associate it with narcotics. (Holt (1989) 212 Cal.App.3d
1200.)
Example:
The evidence at the suppression hearing did not support the search of a gun case under
the "single-purpose container" exception because the flat, nondescript, rectangular
black plastic case labeled "Bushmaster" was virtually identical to guitar cases and/or
other containers that would hold lawful personal property. (Gust (9th Cir. 2005) 405
F.3d 797.)
4.
Abandonment
Generally, evidence that a suspect discards before or during a lawful detention may be seized,
may be examined, and is admissible in court. (Hodari D. (1991) 499 U.S. 621; Green (1994)
25 Cal.App.4th 1107, 1110.)
Example:
Officers drove by an intersection where drug activity had been reported and saw a
male leaning into a vehicle that had stopped on the street. The officers pulled over,
got out, and walked quickly towards the suspect, but said nothing. Upon seeing them
approaching, he dropped a paper bag, turned, and started to run away, whereupon he
was detained. HELD: The bag of drugs was abandoned before the detention
occurred. (Kemonte H. (1990) 223 Cal.App.3d 1507.)
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On the other hand, evidence that is discarded during an illegal detention is generally "tainted"
and inadmissible. (Verin (1990) 220 Cal.App.3d 551.)
If you are "chasing" a suspect at the time he discards the object, there is no problem in seizing
the discarded object. The United States Supreme Court has made clear no detention occurs
until and unless the suspect actually is physically caught or stops on his own, i.e., submits to
your authority. Therefore, anything he tosses away before that moment has been
"abandoned" and is fair game.
Example:
When officers drove around the corner in their unmarked vehicle, a group of males
who had been standing around a red car took off, and so did the car. One officer got
out and ran around the block the other way and got within a few feet of the suspect,
who was looking over his shoulder while running towards the officer, before he
looked up and saw him, whereupon he tossed away a rock of cocaine before being
tackled. HELD: There was no "seizure" (detention) until the moment of the tackle.
Therefore, the abandoned cocaine was not "tainted" by an illegal detention, was
lawfully seized and could be admitted into evidence. (Hodari D. (1991) 499 U.S. 621;
see also Chesternut (1988) 486 U.S. 567.)
Example:
Two officers, wearing police raid jackets, were patrolling a high narcotics area in an
unmarked vehicle when they saw one individual (the suspect) approach another male.
The suspect then took his hand from his pocket, looked up, made momentary eye
contact with the officers, and then took off running. One officer got out of the patrol
car and followed (even "chased") the suspect on foot, but said nothing and took no
other action until after the suspect discarded some cocaine. HELD: There was no
detention at the time of the abandonment, so the cocaine was admissible. (Nickleberry
(1990) 221 Cal.App.3d 63.)
Example:
Several officers of a gang task force approached a large group of young people, who
were wearing gang colors and in a public park, in order to monitor possible gang
activity. One officer, per standard operating procedure, was carrying a 9mm semiautomatic rifle in the low ready position. Although some of the minors were holding
cigarettes, the officers did not see any "exchanges" or drug activity. As the officers
approached, the group dispersed, and the defendant tossed away a baggie of rock
cocaine. The court upheld the police conduct. There was no real chase or pursuit
until after the abandonment and besides, a "detention requires some coercive
governmental action, beyond the act of pursuit, sufficient to lead a reasonable person
to believe he or she was not free to leave." (Christopher B. (1990) 219 Cal.App.3d
455.)
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Example:
2.22e
A uniformed border patrol agent boarded a bus and questioned one nervous passenger,
eventually asking whether two gym bags he was sitting next to and apparently trying
to hide were his. When he said no, the agent asked if the man would mind if he
looked in the bag and the man again said no. The agent opened one bag and found
marijuana. HELD: By disclaiming ownership of the bags, the man "abandoned"
them. He therefore lacked "standing" to object to the warrantless search of the bags,
and the search did not violate his rights. (Gonzales (9th Cir. 1992) 979 F.2d 711,
714.)
Of course, if the situation provides reasonable suspicion to justify a detention before any
chase or pursuit begins, the pursuit makes no legal difference.
Example:
Officers red-lighted a car because they thought the occupants were dealing drugs.
However, after initially pulling over, the vehicle sped off and then crashed a little
later. The driver escaped, but the passenger was apprehended after throwing a weapon
and brown paper bag underneath the car. HELD: The officers could properly retrieve
the objects because (1) they were discarded prior to the time the passenger was
detained, and (2) the officers had reasonable suspicion to at least detain the occupants
anyway, based on one officer's expertise, furtive actions he had observed, and the fact
the occupants had just come out of the residence of an admitted drug-dealer. (Green
(1994) 25 Cal.App.4th 1107, 1110-1111.)
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Example:
At 8:00 p.m. officers saw two vehicles parked side by side facing opposite directions
in the middle of the street in a high narcotics area. Several people were standing near
both cars, and the officers saw them lean into the cars and exchange objects with the
passengers. As the police approached, the cars drove off and many of the individuals,
including the defendant, fled on foot. The officers chased the suspect, who threw
away some rock cocaine before he was apprehended. The court held that these facts
constituted reasonable suspicion; the detention was justified, so it made no difference
whether the chase constituted a detention or not. (McGriff (1990) 217 Cal.App.3d
1140.)
Remember, however, that "flight," alone, is not enough to justify a reasonable suspicion,
according to California cases. The United States Supreme Court has not yet ruled on this
issue. (See discussion under "Flight," above.)
L.
Informing the Suspect of His/Her Status
If at all practicable, tell the suspect that she is not under arrest. Tell her that she is being
detained in order to clear up the problem. Even better, if you can, try to treat a suspect as if
she were just another witness (the "consensual encounter" approach -- "Would you help
me?").
M.
Non-Searches
As discussed above, if a person does not submit to a show of authority and stop when ordered
to do so by a peace officer, the person is not detained. (Hodari D. (1991) 499 U.S. 621, 626.)
Similarly, if an officer orders someone, for example, to empty his pockets and the person fails
to comply, no search has occurred. The reason is that the verbal command did not result in
any invasion of privacy recognized under the Fourth Amendment. (Pope (9th Cir. 2012) 686
F.3d 1078, 1081.)
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IV.
ARRESTS
A.
Definition and Scope
2.23
An arrest occurs when you take a person into custody. This requires either (1) that you
physically restrain or at least touch the person or (2) that he or she submits to your authority.
(Pen. Code, § 835; Hodari D. (1991) 499 U.S. 621, 626; Turner (1994) 8 Cal.4th 137, 180.)
Custody is an objective condition: your subjective intent is not controlling. (Parker (1978)
85 Cal.App.3d 439.)
To be a valid arrest, you must take the person into custody "in a case and in the manner
authorized by law." (Pen. Code, § 834.) If you do not, it is a "false" arrest, which may be a
crime or the start of a civil lawsuit and may result in the suppression of evidence. To be
valid, an arrest must be supported by probable cause. (Kraft (2000) 23 Cal.4th 978, 1037.)
In Atwater (2001) 532 U.S. 318, the U.S. Supreme Court ruled that it is constitutional for
police to make a full custodial arrest for even the most minor offenses. Atwater came out of
Texas, however, where state law gives police statutory authority to do so. In California,
minor Vehicle Code offenses are generally classified as infractions for which police are
required by statute to cite and release unless certain specified conditions exist. (McKay
(2002) 27 Cal.4th 601, 618.)
Although, as a sworn peace officer, you should comply with all state provisions, it is now
clear that a custodial arrest for even a cite-and-release offense will not result in the exclusion
of evidence under the Fourth Amendment if the arrest is supported by probable cause.
(Moore (2008) 553 U.S. 164, 178; see Redd (2010) 48 Cal.4th 691, 720, fn. 11.)
Further, Atwater extends to "unintentional" de facto arrests. For example, what if a detention
for a cite-and-release traffic violation is prolonged to the point that the seizure becomes a de
facto arrest? In such a case, the suppression of evidence is precluded if probable cause
supported an arrest on the traffic violation despite California's cite-and-release provisions.
(Gomez (2004) 117 Cal.App.4th 531, 539 [prolonged detention for seatbelt violation resulted
in de facto arrest supported by probable cause; arrest supported by probable cause does not
violate the Fourth Amendment]; see Gallardo (2005) 130 Cal.App.4th 234, 239, fn. 1 ["even
if the defendant was detained so long that the stop became a de facto arrest, the initial traffic
stop provided probable cause"].)
Probable cause for an arrest must be justified by the objective circumstances--regardless of
the arresting officer's motivation. This is because the "Fourth Amendment regulates conduct
rather than thoughts." (Al-Kidd (2011) 563 U.S. 731, 736, 740.)
B.
Who May Arrest
Under the proper circumstances, everyone has some authority to make an arrest. Peace
officers have more authority than private persons. (See Ch. 5-XII, "Private" Arrests.)
For a felony, you may arrest a person (1) with a warrant or (2) without a warrant if you have
probable cause to believe he or she committed a felony, regardless of whether or not it was
committed in your presence.
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For a misdemeanor, the general rule is that you may arrest a person (1) with a warrant or (2)
without a warrant if the misdemeanor was committed in your presence. (Pen. Code, § 836.)
Numerous exceptions to this rule allow a warrantless arrest for a misdemeanor--assuming the
arrest is supported by probable cause--even though the misdemeanor was not committed in
your presence when:
-
the crime was committed by a juvenile (Welf. & Inst. Code, § 625; Samuel V. (1990)
225 Cal.App.3d 511, 513);
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the suspect was driving while under the influence (DUI) and (1) was involved in an
accident, (2) is observed in or about a vehicle that is obstructing a roadway, (3) will
not be apprehended unless immediately arrested, (4) may cause injury to himself or
herself or damage property unless immediately arrested, or (5) may destroy or conceal
evidence of the crime unless immediately arrested (Veh. Code, §§ 40300.5, 40600);
Note:
Because anyone under the influence of alcohol is "destroying evidence" simply
by letting time go by (because his BAC is diminishing), a timely DUI arrest
would be legal (with probable cause, of course) even though you did not
actually see the vehicle being driven. (Thompson (2006) 38 Cal.4th 811, 819;
see Schofield (2001) 90 Cal.App.4th 968, 972-975.)
Note:
Vehicle Code section 40300.5 was upheld as constitutional in Burton (2013)
219 Cal.App.4th Supp. 9, which found that the federal Constitution does not
require that a misdemeanor be committed in an officer's presence.
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the suspect was carrying a loaded firearm on his or her person or in a vehicle while in
any public place or on any public street (Pen. Code, § 25850, subd. (g));
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the suspect committed an assault or battery while on school property (as defined)
during hours when school activities are being conducted (Pen. Code, § 243.5);
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the suspect committed an assault or battery upon a firefighter, emergency medical
technician, or mobile intensive care paramedic while that person is on duty engaged in
the performance of his or her duties (Pen. Code, § 836.1);
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you have probable cause to believe that the suspect has committed an assault or
battery on a person with whom he or she presently has or did have a relationship,
including a current or former spouse; current or former fiance(e) or cohabitant; person
with whom the suspect is or was engaged to or had a dating relationship (as defined in
Pen. Code, § 243, subd. (f)(10)); person with whom the suspect parented a child or is
presumed to have parented a child; the suspect's actual child; a child who is a subject
of an action against the suspect under the Uniform Parentage Act; the child of any
person in any of the foregoing categories; or any other person related to the suspect by
consanguinity (blood) or affinity (marriage) within the second degree (Pen. Code, §
836, subd. (d));
Note:
This exception will cover many domestic violence situations where there
appears to have been an assault or battery but no protective or restraining order
is involved and the victim is less than eager to press charges.
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1.
2.24a
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you have probable cause to believe that an assault or battery was committed upon any
person who is 65 years of age or older and who is related to the suspect by blood or
legal guardianship (Pen. Code, § 836, subd. (d));
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you are at an airport in an area to which access is controlled by the inspection of
persons and property, and you have probable cause to believe that the suspect has
violated Penal Code section 25400 (carrying a concealable firearm on his person)
(Pen. Code, § 836, subd. (e)).
Mandatory Arrests for Violations of Court Protective Orders
An arrest is mandatory if you respond to a call alleging a violation of a domestic violence
protective order, restraining order, probation protective order, harassment order, emergency
protective order in stalking cases, or elder abuse protective order and you have probable cause
to believe (1) that the person against whom the order was issued had notice of the order and
(2) that the person has violated that order. (Pen. Code, § 836, subd. (c).) This section also
applies when a domestic violence protective order or restraining order has been issued by a
court outside California.
2.
Federal Employees--Authority to Arrest for State Offenses
Penal Code section 830.8, subdivision (b), provides: "Duly authorized federal employees
who comply with the training requirements set forth in Section 832 are peace officers when
they are engaged in enforcing applicable state or local laws on property owned or possessed
by the United States government, or on any street, sidewalk, or property adjacent thereto, and
with the written consent of the sheriff or the chief of police, respectively, in whose
jurisdiction the property is situated." The term "adjacent" is not unconstitutionally vague and
is not restricted to areas within "striking distance" of the federal property: testimony that the
location of a detention and arrest is "right next to" the federal property is sufficient. (Redd
(2010) 48 Cal.4th 691, 716-717.)
Penal Code section 830.85 addresses federal immigration officers. It provides that United
States Immigration and Customs Enforcement officers and United States Customs and Border
Protection officers are not California peace officers.
C.
How to Arrest
You must either physically restrain or touch the suspect, or the suspect must submit to your
authority. (Pen. Code, § 835.) "There can be no arrest without either touching or
submission." (Hodari D. (1991) 499 U.S. 621, 626-627.)
You may use reasonable force to effect the arrest, overcome resistance, or prevent escape.
(Pen. Code, §§ 835, 835a, 843.) A suspect has a duty to submit and may not resist an arrest,
even if the arrest is unlawful. (Pen. Code, § 834a.) However, if you use excessive force, the
suspect may lawfully resist with enough force to resist the excessive force.
Note:
What is "reasonable" is based on the totality of the circumstances. For
example, ramming a fleeing motorist's car to terminate a high-speed chase that
threatened the public was not "excessive force," even though the driver could
have been seriously injured or killed. (Scott v. Harris (2007) 550 U.S. 372.)
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Normally, you must tell the arrestee (1) you intend to arrest him or her, (2) the reason for the
arrest, and (3) your authority (i.e., that you are a peace officer). (Pen. Code, § 841.) You are
excused from giving any of these advisements if they are completely obvious from the
circumstances (e.g., catching the suspect red-handed would make it unnecessary to say what
the arrest is for; making the arrest in uniform would make it unnecessary to advise the
arrestee of your authority). However, if the suspect asks you about any of these matters, you
must provide an answer.
1.
Arrest of Foreign Nationals
If you arrest and book a known or suspected "foreign national," or if you detain one for more
than two hours, you must advise him or her of the right to communicate with an official from
the consulate of his or her country. And, if the foreign national elects to exercise this right,
then you must also inform the "pertinent official" at your agency about the arrest or detention
and the request. (Pen. Code, § 834c.) This statute also sets forth 56 countries (such as
Russia, China and the Philippines, but not Mexico) that require mandatory notification,
regardless of the foreign national's wishes.
Note:
2.
Failure to advise an arrestee as required in section 834c should not result in the
suppression of any evidence. (Lombera-Camorlinga (9th Cir. 2000) 206 F.3d
882, 888; Amano (9th Cir. 2000) 229 F.3d 804; Corona (2001) 89 Cal.App.4th
1426, 1429-1430; see Sanchez-Llamas (2006) 548 U.S. 331.)
Immunity for Drug-Related Overdoses
Any person who calls for medical assistance for someone experiencing a drug-related
overdose is protected from arrest or prosecution for being under the influence of a controlled
substance or for being in possession for personal use of a controlled substance or drug
paraphernalia. This immunity applies equally if the person who makes the good faith call for
medical assistance is the person who has overdosed. The definition of "drug-related
overdose" is "an acute medical condition that is the result of the ingestion or use by an
individual of one or more controlled substances or one or more controlled substances in
combination with alcohol, in quantities that are excessive for that individual that may result in
death, disability, or serious injury." (Health & Saf. Code, § 11376.5.)
D.
When You May Arrest
For a felony, you may make an arrest--with or without a warrant--at any time of the day or
night. (Pen. Code, § 840.)
However, for a misdemeanor or infraction, there is a time limitation. You must make the
arrest--with or without a warrant--between 6:00 a.m. and 10:00 p.m. unless:
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the misdemeanor or infraction occurred in your presence (see Welsch (1984) 151
Cal.App.3d 1038 for discussion of "presence"); or
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the arrest is made in a public place; or
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you have a warrant endorsed for nighttime service; or
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E.
2.25
-
the arrestee is already in custody on another charge or is taken into custody on a
citizen's arrest; or
-
you make the arrest for violation of a domestic violence protective order, even though
the violation did not occur in your presence. (Pen. Code, §§ 836, 840.)
Note:
If you make an "illegal" arrest by failing to comply with these or other purely
statutory arrest requirements (such as the "in your presence" requirement for
most misdemeanor arrests under Pen. Code, § 836), any evidence you obtain
does not necessarily have to be suppressed, as long as the constitutional
requirements, such as probable cause for the arrest, were fulfilled. (Moore
(2008) 553 U.S. 164, 177-178; McKay (2002) 27 Cal.4th 601, 608.)
Note:
Case law provides that the warrantless arrest of an adult for misdemeanors
must be made at the time you observe the offense or within a reasonable time
thereafter; otherwise, it becomes "stale." (Hampton (1985) 164 Cal.App.3d
27.) As stated above, for the purpose of suppression, the only question that
can control whether an arrest is lawful is whether it was based on probable
cause and, thus, constitutional under the Fourth Amendment.
Where You May Arrest
You may arrest (1) in a public place, (2) inside the residence of the arrestee or third person
only if you have reasonable grounds to believe the suspect is inside (Jacobs (1987) 43 Cal.3d
472, 479) and you have an arrest warrant, consent to enter (except for the nighttime
misdemeanor situation discussed above), exigent circumstances, or the probable cause for the
arrest arises after you are already lawfully inside (see "Arrest Warrants," Ch. 2-V below), or
(3) beyond the geographical boundaries of your agency only if (a) the crime was committed in
your jurisdiction, (b) exigent circumstances exist, or (c) you have consent from the agency
having jurisdiction where the arrest occurred (Hamilton (1986) 191 Cal.App.3d Supp. 13).
Note that a doorway is considered a "public place." "The Fourth Amendment's prohibition on
warrantless entry into an individual's home does not apply to arrests made at the doorway."
(Schofield (2001) 90 Cal.App.4th 968, 976; McArthur (2001) 531 U.S. 326, 335; but see
Quaempts (9th Cir. 2005) 411 F.3d 1046, 1048-1049 [arrestee who opened his front door but
remained in the residence was not in a public place].)
F.
Arraignment/Probable Cause Determination/Release From Custody
Following an arrest, the usual procedure is to take the arrestee to jail to be booked. A
complaint is then filed, and the arrestee is brought before a magistrate without unnecessary
delay. (Pen. Code, § 825.) This procedure will always be followed for felony arrests made
pursuant to a warrant.
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Arraignment. In every case, the arraignment must occur within 48 hours after the defendant's
arrest, excluding weekends and holidays. If the 48 hours end when the court is not in session,
the arraignment may take place during the next court day. If the 48 hours end when the court
is in session, the arraignment may take place at any time during that session. But if the
defendant is arrested on a Wednesday after court hours, he must be arraigned on the following
Friday, unless Wednesday or Friday is a court holiday.
Probable Cause Determination. Generally, in cases of warrantless arrests of adults, there
must be a judicial determination of probable cause not more than 48 hours after the suspect's
actual arrest, with no exceptions for weekends or holidays. An arraignment will serve this
purpose as long as it takes place within this time period and without an unreasonable delay.
(See McLaughlin (1991) 500 U.S. 44.)
Note:
For juveniles, the same rule applies, except that the time limit is 72 hours
instead of 48 hours. In other words, there must be a judicial determination of
probable cause--which may or may not take the form of a "detention hearing"-within 72 hours of arrest, with no exceptions for weekends or holidays. The
language in Welfare and Institutions Code sections 631 and 632, extending the
time for "non-judicial days" (i.e., weekends and holidays), has been
disapproved. (Alfredo A. (1994) 6 Cal.4th 1212, 1231-1232.)
However, compliance with the 48-hour rule does not guarantee that a post-arrest detention
complies with the Fourth Amendment. The First District Court of Appeal has held that a 16hour delay in obtaining a probable cause determination following an arrest for driving without
a license was unreasonable. A delay is unreasonable if it was effected for the sole purpose
of investigating additional crimes. The court held that all evidence obtained as a result of the
unreasonably prolonged post-arrest detention--i.e., statements--was subject to suppression
under the exclusionary rule. (Jenkins (2004) 122 Cal.App.4th 1160, 1175-1178.)
Release from Custody. Certain provisions permit the release from custody, both before and
after booking, of arrestees in other situations. Whether or not you release an arrestee will
depend upon statutory authority and departmental policy. (See Pen. Code, §§ 827.1, 849,
853.6, discussed below.)
1.
Section 827.1 - Arrests by Warrant - Misdemeanors
This section applies only to persons named in misdemeanor arrest warrants.
Under this section, you may cite and release the named person, instead of taking him or her
into physical custody, unless one of the following conditions exists: (1) the misdemeanor
cited in the warrant involves violence, a firearm, resisting arrest, or giving false information
to a peace officer; (2) the person is a danger to himself or herself because of alcohol, drugs or
narcotics; (3) the person has other ineligible charges pending against him or her; (4) the
person refuses to sign the notice to appear; (5) the person cannot provide satisfactory
evidence of personal identification; (6) there is a reasonable likelihood that the offense would
continue or resume if you released the person, or that the safety of persons or property would
be immediately endangered; or (7) the arrest warrant states that the person is not eligible to be
released on a citation.
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2.26a
Section 849 - Warrantless Arrests - Felony or Misdemeanor
"When an arrest is made without a warrant by a peace officer or private person, the person
arrested, if not otherwise released, shall, without unnecessary delay, be taken before the
nearest or most accessible magistrate in the county in which the offense is triable, and a
complaint stating the charge against the arrested person shall be laid before the magistrate."
(Pen. Code, § 849, subd. (a).)
There are five exceptions to this rule. A person arrested without a warrant for either a felony
or a misdemeanor may be released if:
(1)
you are satisfied that there are insufficient grounds for making a criminal complaint;
(2)
the arrest was for being under the influence of a drug or narcotic, the person has been
taken to a hospital or treatment facility, and you do not believe further proceedings are
desirable;
(3)
the person arrested was delivered to a hospital or urgent care facility for a mental
health evaluation and treatment by a facility providing treatment of co-occurring
substance use disorders, and you do not believe that further proceedings are desirable.
Under any of the above circumstances, the record of arrest shall include a record of release
and the arrest shall be deemed a detention only. The arrest will not include a record of release
and remains an arrest under the following two circumstances:
3.
(4)
the arrest was for intoxication only, and you do not believe further proceedings are
desirable;
(5)
the person was arrested for driving under the influence and delivered to a hospital or
medical facility for medical treatment that prevented immediate delivery before a
magistrate.
Section 853.6 - Warrantless Arrests - Misdemeanors
This section sets out the procedure for releasing persons who have been arrested without a
warrant for misdemeanors, including violation of any city or county ordinance, and who do
not demand to be taken before a magistrate.
Note:
Section 853.6 does not distinguish between misdemeanor arrests with or
without a warrant. However, a published Attorney General opinion explains
why the section should be applied only to misdemeanor arrests without a
warrant. (69 Ops.Cal.Atty.Gen. 139 (1986).)
In 2010, the section was revised to comport with Penal Code section 1270.1 (see § 853.6,
subd. (a)(3)) and recognizes new booking technologies that would permit in-field booking of
an arrestee (see § 853.6, subd. (a)(1)).
Note, however, that the cite-and-release provisions do not apply under the following
circumstances:
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•
When the arrest is for a misdemeanor violation of a protective court order involving
domestic violence, as defined in Penal Code section 13700, subdivision (b) (i.e., upon
a spouse, former spouse, cohabitant, etc.). (§ 853.6, subd. (a)(2).)
•
When the arrest is pursuant to your department's policy for responding to domestic
abuse calls (which should encourage the arrest of domestic violence offenders), as
described in Penal Code section 13701. (§ 853.6, subd. (a)(2).)
•
When the arrest is for any crime listed in the Penal Code section 1270.1 bail
provisions. (§ 853.6, subd. (a)(3).) These crimes include:
-
misdemeanor domestic violence (Pen. Code, § 243, subd. (e)(1));
-
domestic violence with corporal injury (Pen. Code, § 273.5);
-
violation of a Penal Code section 273.6 protective order "if the detained person
made threats to kill or harm, has engaged in violence against, or has gone to
the residence or workplace of, the protected party";
-
stalking (Pen. Code, § 646.9).
With regard to warrantless misdemeanor arrests, you have a choice of (1) booking arrestees at
the scene or at the arresting agency before you release them or (2) indicating on the citation
that an arrestee shall appear at the arresting agency to be booked or fingerprinted sometime
prior to the arrestee's court date. (§ 853.6, subd. (g).)
If you choose the second option, the arrestee would have to come in to the arresting agency
sometime prior to his scheduled court date to be booked or fingerprinted. At that time, the
agency must provide him with written verification that this task has been completed. Then,
when the arrestee goes to court and before the proceedings begin, the judge should ask for the
written verification. If the arrestee does not have written verification, the court will order that
the arrestee be booked or fingerprinted and provide verification at the next court appearance.
(§ 853.6, subd. (g).)
You are required to cite and release arrested persons per section 853.6, subdivision (i),
unless one of the following 10 reasons for nonrelease exists:
(1) The arrestee was so intoxicated that he or she could have been a danger to himself or
herself or to others;
(2) The arrestee required medical examination or medical care or was otherwise unable to
care for his or her own safety;
(3) The person was arrested for driving under the influence (Veh. Code, § 23152) or under
one or more of the circumstances listed in Vehicle Code sections 40302 and 40303
(vehicle tampering, reckless driving, driving while license suspended or revoked, refusing
to stop and submit to various vehicle inspections, etc.);
(4) There were one or more outstanding arrest warrants for the arrestee;
(5) The arrestee could not provide satisfactory evidence of personal identification;
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(6) The prosecution of the offense or offenses for which the person was arrested, or the
prosecution of any other offense or offenses, would be jeopardized by immediate release
of the arrestee;
(7) There was a reasonable likelihood that the offense or offenses would continue or resume
or that the safety of persons or property would be imminently endangered by release of
the arrestee;
(8) The arrestee demanded to be taken before a magistrate or refused to sign the notice to
appear;
(9) There is reason to believe that the arrestee would not appear at the time and place
specified in the notice (with the basis for this determination specifically stated); or
(10) The arrestee was subject to Penal Code section 1270.1.
If you do not release the arrestee, you must indicate on a departmental form which reason for
nonrelease applies.
Note:
You have the authority to obtain the right thumbprint of any person you are
citing and releasing on a written promise or notice to appear, if that person has
no driver's license or other satisfactory evidence of identification. This is true
both for infractions (Pen. Code, § 853.5) and misdemeanors (Pen. Code, §
853.6, subd. (d)). A published opinion from the California Attorney General
concludes that you may take into custody any person who commits a nonVehicle Code infraction if the arrestee cannot produce satisfactory
identification, even if the arrestee is willing to sign the promise to appear and
provide a thumbprint. (88 Ops.Cal.Atty.Gen. 196 (2005).)
Note:
With regard to "satisfactory evidence of personal identification," be wary of
Social Security cards, birth certificates, vehicle registrations, school IDs, credit
cards, etc. Make every effort to corroborate these types of identification
through effective questioning, comparisons, verification from others, etc. If
you remain unsatisfied, book the arrestee.
"Ticket fixing" is specifically prohibited:
"Any person, including the arresting officer and any member of the officer's department or
agency, or any peace officer, who alters, conceals, modifies, nullifies, or destroys, or causes
to be altered, concealed, modified, nullified, or destroyed, the face side of the remaining
original or any copy of a citation that was retained by the officer, for any reason, before it is
filed with the magistrate or with a person authorized by the magistrate to receive deposit of
bail, is guilty of a misdemeanor." (§ 853.6, subd. (j).)
4.
Departmental Policies
Besides the statutory authority regulating misdemeanant releases, most departments have
established guidelines relating to field releases. Every officer should be familiar with these
regulations.
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Probable Cause
"An arrest is valid only if supported by probable cause." (Kraft (2000) 23 Cal.4th 978, 1037.)
As has been stated, you may arrest someone without a warrant only if you have "probable
cause" to believe he or she committed an offense. The classification of the offense--felony,
misdemeanor, infraction--does not control. An arrest is "constitutionally reasonable" when an
"officer has probable cause to believe a person committed even a minor crime in his
presence." (Moore (2008) 553 U.S. 164, 171.)
"Probable cause" to arrest (1) requires more than the "reasonable suspicion" necessary for a
detention and (2) is essentially the same as the "probable cause" required to obtain an arrest
warrant or a search warrant. (Campa (1984) 36 Cal.3d 870, 879; Gorrostieta (1993) 19
Cal.App.4th 71, 84.)
Note:
There is no difference between the meaning of "reasonable cause," which is
the term that appears in the California statutes (Pen. Code, § 836), and the term
"probable cause" as used in federal Fourth Amendment law. The two terms
are identical. (Memro (1995) 11 Cal.4th 786, 843; Puryear (1998) 66
Cal.App.4th 1188, 1195.)
Whether "probable cause" exists depends upon the reasonable conclusions that can be "drawn
from the facts known to the arresting officer at the time of the arrest." (Devenpeck v. Alford
(2004) 543 U.S. 146, 152; Pringle (2003) 540 U.S. 366, 371.) "Probable cause" exists when
the totality of the circumstances would lead a person of ordinary care and prudence to
entertain an honest and strong suspicion that the person to be arrested is guilty of a crime.
(Scott (2011) 52 Cal.4th 452; Price (1991) 1 Cal.4th 324, 410; Kraft (2000) 23 Cal.4th 978,
1037.) "[S]ufficient probability, not certainty, is the touchstone of reasonableness under the
Fourth Amendment." (Garrison (1987) 480 U.S. 79, 87.) And Supreme Court precedent
recognizes "that the whole is often greater than the sum of its parts" when evaluating probable
cause. (Wesby (2018) 2018 WL 491521*9.)
Your training and experience are relevant to a determination of probable cause. (Guajardo
(1994) 23 Cal.App.4th 1738, 1742; Gonzales (1989) 216 Cal.App.3d 1185; Rosales (1987)
192 Cal.App.3d 759.) However, "an arresting officer's state of mind (except for the facts he
knows) is irrelevant to the existence of probable cause." (Devenpeck v. Alford (2004) 543
U.S. 146, 153, added emphasis.)
As in other areas of Fourth Amendment law, when courts assess whether the information you
had amounted to probable cause to arrest, they will use an objective standard "without regard
to the underlying intent or motivation of the officers involved." (Gonzales (1989) 216
Cal.App.3d 1185, 1190; accord, Devenpeck v. Alford (2004) 543 U.S. 146; Boissard (1992) 5
Cal.App.4th 972, 980; Miranda (1993) 17 Cal.App.4th 917, 924-928; Valencia (1993) 20
Cal.App.4th 906, 914-918.) This is a critical point. If you have probable cause to arrest a
suspect for any offense--not just the one articulated at the time of the arrest--the arrest and
fruits of the arrest are valid. (Wesby (2018) 2018 WL 491521 *5, fn. 2.)
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Example:
If you arrest a suspect for "X" offense, and a court later decides that there was no
probable cause for that arrest, the arrest will still be upheld if, objectively, you had
probable cause to arrest the suspect for "Y" offense. Furthermore, "X" and "Y" do not
have to be "related." (Devenpeck v. Alford (2004) 543 U.S. 146; Rodriguez (1997) 53
Cal.App.4th 1250, 1262-1267; see McDonald (2006) 137 Cal.App.4th 521--applied to
detentions.)
Example:
Suspect who pulled a gun on officers fled in a green Ford Focus. The Focus was
found in a Fred Meyer parking lot 30 minutes later and placed under surveillance.
That evening, Lopez, who partially matched the description of the suspect, pulled up
in a Ford Taurus and dropped off a female to drive the Focus out of the lot. Lopez
was stopped and taken into custody. He consented to a search of the Taurus, in which
officers found narcotics, cash and a loaded gun in a secret compartment. HELD:
Although the initial seizure was lawful, the probable cause to believe that Lopez was
the principal had dissipated as the officers collected additional information. However,
based on the objective facts, they did have probable cause to believe that Lopez was
an accessory (after the fact). Under Devenpeck, Lopez's seizure and its fruits--his
consent to search--were valid. (Lopez (9th Cir. 2007) 482 F.3d 1067.)
Probable cause does not require certain, positive information, or even enough to convict
someone. (Hart (9th Cir. 2006) 450 F.3d 1059, 1067.) It "requires only a probability or
substantial chance of criminal activity, not an actual showing of such activity." (Gates (1983)
462 U.S. 213, 243-244, fn. 13; Wesby (2018) 2018 WL 491521 *6.)
What is required to establish probable cause is something less than a preponderance (51%) of
the evidence. (Gates (1983) 462 U.S. 213, 235.) The United States Supreme Court has stated
that probable cause "is not a high bar." (Kaley (2014) 134 S.Ct. 1090, 1103; Wesby (2018)
2018 WL 491521 *6.)
Example:
There was probable cause to arrest the suspect for murder where (1) he lived near the
victim; (2) had been seen near the victim's residence shortly before her death; and (3)
his palm print was found on two articles in the same room where the victim's body
was discovered. (Wright (1990) 52 Cal.3d 367, 392; see also Kaurish (1990) 52
Cal.3d 648, 676.)
Example:
The Supreme Court has noted that officers are allowed to make "common-sense
conclusions" about human behavior. For example, most homeowners do not live in
"near-barren houses." And "most homeowners do not invite people over to use their
living room as a strip club, to have sex in their bedroom, to smoke marijuana inside,
and to leave their floors filthy." (Wesby (2018) 2018 WL 491521 *7.)
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Example:
Conflicting statements for which there could be no apparent innocent meaning, in
combination with the suspect's admission of having been with the victim around the
time he vanished, went a long way towards establishing probable cause to arrest.
(Memro (1995) 11 Cal.4th 786, 843.)
Example:
An officer saw Gonzales, an admitted and known narcotics user, in a deteriorated
physical state one day and asked him what he was doing. Gonzales gave some
improbable answers and kept reaching toward a pocket out of which the officer could
see one-half inch of a protruding "cylindrical rolled-up" clear plastic baggie. Based
on his considerable training and experience in the identification and packaging of
controlled substances, the officer believed it to be a bindle of contraband, so he
removed it. The officer's actions were legal: the encounter was originally consensual
but quickly developed into probable cause to arrest based on Gonzales' background,
emaciated condition, track marks, hand movements, the story he told, and the type of
container that the experienced officer could see. This probable cause to arrest justified
the search and seizure, even though the actual arrest did not occur until moments later.
(Gonzales (1989) 216 Cal.App.3d 1185.)
Example:
Two Anaheim undercover officers saw four males running down the street and heard
one of them yell, "He's over there!" after running around a corner. One officer
recognized J.G. as a member of the ATC gang and saw him holding a red brick while
he ran. Another of the males was holding the plastic top of a lamp. One of the males
pointed north, and the four eventually ran out of sight. The officers followed them in
an unmarked car. The four males were still walking in a group and still carrying the
brick, the lamp top, and a rock when the officers approached them. All four were
arrested. The officers did not locate a victim being chased. HELD: J.G. was properly
arrested for possession of a deadly weapon with intent to commit assault. He was
recognized as a member of a gang and running with a brick in his hand with three
others, one of whom yelled that someone was "over there." The court found that these
facts clearly suggested that the group intended to use their rudimentary weapons to
harm someone. (In re J.G. (2010) 188 Cal.App.4th 1501, 1507-1508.)
Example:
Experienced narcotics officer had probable cause to arrest Guajardo after (1) he saw
him in a neighborhood known for street narcotics trafficking, (2) he saw him hand a
small object to one of two males who were with him, (3) the recipient put the object
into a cigarette package, (4) the officer had arrested the suspect one month earlier for
selling narcotics, and (5) the suspect seemed nervous when he and the others
approached the patrol vehicle afterwards. (Guajardo (1994) 23 Cal.App.4th 1738,
1742-1743.)
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The facts supporting probable cause are not limited in the same way that evidence, such as
hearsay, is limited at a jury trial. In addition to your personal knowledge, training, expertise,
experience, observations, etc., probable cause can include information conveyed from others
(i.e, victims, citizens, other officers, "official channels," reliable informants, corroborated
tipsters, etc.) if it is reasonable to rely on this information under the totality of the
circumstances. (Ramirez (1997) 59 Cal.App.4th 1548, 1553; Rosales (1987) 192 Cal.App.3d
759; Boissard (1992) 5 Cal.App.4th 972, 979; Ngaue (1992) 8 Cal.App.4th 896, 906; Alcorn
(1993) 15 Cal.App.4th 652, 655.) It is not sufficient, however, to rely on an alleged victim's
hearsay if inconsistencies or generalities undermine its "indicia of reliability." (Gillan (2007)
147 Cal.App.4th 1033, 1044-1047 [student accused teacher of sexual molestation].) In such a
case, the better course would be to present your probable cause to a magistrate for the
issuance of an arrest warrant. (For a more complete discussion of probable cause based on
information from others, see "Informants" in Ch. 6.)
If more than one officer has worked on an investigation, probable cause may be based on the
"collective knowledge" of all the officers involved and all the inferences that may reasonably
be drawn therefrom. (Ramirez (1997) 59 Cal.App.4th 1548, 1555-1556; Alcorn (1993) 15
Cal.App.4th 652, 655.) "'[W]hen police officers work together to build "collective
knowledge," the important question is not what each officer knew, but how valid and
reasonable the probable cause was that developed in the officers' collective knowledge.'"
(Gomez (2004) 117 Cal.App.4th 531, 538; accord Ramirez (9th Cir. 2007) 476 F.3d 1026,
1037 ["Where one officer knows facts constituting reasonable suspicion or probable cause . . .
and he communicates an appropriate order or request, another officer may conduct a
warrantless stop, search, or arrest without violating the Fourth Amendment"].)
If all the information you possess, individually or collectively, does not rise to the level of
"probable cause" at the moment of custody, the arrest (seizure) is unreasonable, and all the
evidence gathered as a result of the arrest will be inadmissible. This is why it is so important
that you don't arrest someone by "accident," e.g., turn a detention into an arrest by your
conduct, even though you were not intending to do so. Additionally, if previously established
probable cause "dissipates," a person must be released from custody. (Espino (2016) 247
Cal.App.4th 746; Lopez (9th Cir. 2007) 482 F.3d 1067, 1073.)
Example:
Espino, a § 290 registrant, was stopped for speeding. After he was ordered out of the
car, Espino kept putting his hands in pockets. He consented to a search of his pockets,
where the officers found a hard small object consistent with crack cocaine but that
was, in fact, a diamond. The officers had handcuffed Espino before taking the object
out of his pocket. They did not remove the handcuffs. HELD: The continued use of
handcuffs was a de facto arrest, which was unlawful after the officers found that the
item was not contraband. Espino's subsequent consent to search his car was
invalidated by the unlawful de facto arrest. (Espino (2016) 247 Cal.App.4th 746.)
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If probable cause is based on the violation of a presumptively valid statute or ordinance, the
subsequent invalidation of the statute does not affect the existence of the officer's probable
cause at the moment of custody. (DeFillippo (1979) 443 U.S. 31, 37-38.) For example, a
subsequent state court decision overturning a local ordinance did not invalidate the officer's
reasonable reliance on the ordinance at the time of the defendant's arrest. (DeFillippo (1979)
443 U.S. 31, 37-38.) The subsequent finding that a 25-mph zone was an illegal "speed trap"
did not invalidate a detention based on a violation of the posted speed limit. (Hardacre (2004)
116 Cal.App.4th 1292, 1300.)
1.
Passengers
Passengers in lawfully stopped vehicles can be arrested only if, based on all the facts and
circumstances, you have probable cause to believe the passenger has committed a criminal
offense.
Example:
The arrest of the driver and passenger for burglary and receiving stolen property was
based on the observation of numerous cellular phones behind the driver's seat and the
contents of a canvas bag in the front part of the pickup. HELD: No probable cause to
arrest the passenger, who had not done or said anything suspicious and to whom the
officer had not made any inquiries before the arrest. (Justin B. (1999) 69 Cal.App.4th
879, 887-888.)
Example:
There was no probable cause, without more information, to arrest the Hispanic
passenger (and the other three occupants) in a suspected getaway car that had been
used in a robbery nine days earlier. The two robbers, wearing ski-masks, were
described as a black and a Hispanic male and no further description had been given.
(Gonzalez (1998) 64 Cal.App.4th 432, 439.)
Example:
Pringle was the front-seat passenger in a car stopped for speeding. A search of the
Nissan sedan conducted with the driver's consent uncovered $763 in cash from the
glove compartment and five plastic baggies of cocaine behind the back-seat armrest.
When questioned, Pringle, the driver, and the back-seat passenger all denied
ownership of the money or the drugs. HELD: The officer had probable cause to
arrest Pringle for possession of the cocaine. A reasonable officer could infer that any
or all three of the vehicle's occupants were in possession of the narcotics, either jointly
or alone. (Pringle (2003) 540 U.S. 366.)
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V.
2.29
ARREST WARRANTS/SUMMONSES
An arrest warrant authorizes police to enter the premises where a suspect lives, for the limited
purpose of taking him into custody, when police have reason to believe the suspect is inside.
(Payton (1980) 445 U.S. 573, 603; Buie (1990) 494 U.S. 325, 330; Downey (2011) 198
Cal.App.4th 652, 662; LeBlanc (1997) 60 Cal.App.4th 157, 164.) Probable cause, which is
an objective inquiry, is required for an arrest warrant, and the subjective motive of the officer
seeking the warrant is irrelevant. (Al-Kidd (2011) 131 S.Ct. 2074, 2083.) An arrest warrant
provides authority to search anywhere where the suspect may be found. (Buie (1990) 494
U.S. 325, 330.) The warrant may be for either felonies or misdemeanors (LeBlanc (1997) 60
Cal.App.4th 157, 164), and it may be issued either before or after a criminal complaint has
been filed.
When a complaint has been filed indicating that the named defendant has committed a
specified offense, the court, if satisfied that the offense has been committed and that there are
reasonable grounds to believe that the defendant has committed the offense, must then issue a
warrant for the defendant's arrest. (Pen. Code, §§ 813-814, 1427.)
Penal Code section 813 also provides for the option of a summons, instead of an arrest
warrant, if the prosecutor requests one. A summons tells the defendant when and where to
show up for booking and is in substantially the same form as an arrest warrant. If the
defendant fails to appear, a bench warrant issues. The statute also sets out situations where
the prosecutor is not permitted to ask for a summons, for instance, when the offense involves
violence, firearms, resisting arrest, or the defendant has outstanding arrest warrants or is
likely not to appear as directed, etc. (Pen. Code, § 813.) Penal Code section 816a authorizes
any peace officer (or authorized process server) to serve this type of "summons" by delivering
one copy to the defendant and filing a duplicate copy with the magistrate before whom the
defendant is to appear.
If a complaint has not yet been filed, some counties use "Ramey" warrants--arrest warrants
obtained before a complaint has been filed--as an alternative to the usual complaint/warrant
procedure. Named after the California Supreme Court case that requires warrants for in-home
arrests, "Ramey" arrest warrants are issued based on affidavits establishing probable cause.
The magistrate evaluates the information in the affidavit to assess whether probable cause to
arrest exists. On finding probable cause, an arrest warrant is issued, even though no criminal
complaint has been filed. (This procedure was specifically approved in Bittaker (1989) 48
Cal.3d 1046 and then codified as Penal Code section 817 in 1996.) After the suspect named
in the "Ramey" warrant has been arrested, a criminal complaint must be filed pursuant to
Penal Code section 849.
Note:
As used in this discussion, the term "Ramey" warrant means nothing more than
a pre-complaint arrest warrant, that is, an arrest warrant that a magistrate issues
before a criminal complaint or "case" has been filed. And it makes no
difference whether the "case" is, or turns out to be, a felony or a misdemeanor.
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Jurisdictions using pre-complaint "Ramey" warrants have found numerous advantages in the
procedure, including:
-
Burden of Proof. If an officer arrests a defendant based on his assessment of probable
cause without first obtaining a pre-complaint "Ramey" warrant, the People bear the
burden of proving the legality of the arrest at any subsequent suppression hearing.
However, if the officer obtains a pre-complaint "Ramey" warrant, the burden is shifted
to the defendant to prove that the warrant was inadequate. Furthermore, because of
the Leon "good faith" exception (see Ch. 6-II-C), use of a pre-complaint "Ramey"
warrant may also preclude the defense from being able to attack the adequacy of
probable cause.
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Efficiency. Obtaining a pre-complaint "Ramey" warrant can save a significant
amount of court time. For example, the few hours it may take to prepare such a
warrant may save the many hours required to defend suppression motions and other
challenges to warrantless arrests.
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Confidentiality. If a pre-complaint "Ramey" warrant is used, the identity of a
confidential informant remains confidential.
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Aid in Apprehension. Obtaining a pre-complaint "Ramey" warrant helps persuade
other jurisdictions to look for the person named in the warrant. A "Ramey" warrant
may be entered in C.L.E.T.S./W.P.S. either as a "permanent" warrant or as a
"temporary" warrant. A "temporary" warrant will stay in the W.P.S. for 48-72 hours,
depending upon when it was entered. It will automatically be purged at that point.
Note:
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Do not enter a warrant into the system unless your agency is prepared to
assume the cost of going to interview the suspect, or of bringing him back to
your jurisdiction, if and when he is arrested. Also, as either the arresting
agency or the entering agency, you should make an effort to ensure that the
warrant has been deleted from the system after the suspect has been arrested.
Sixth Amendment Right to Counsel Does Not Attach. A pre-complaint "Ramey"
warrant does not initiate criminal proceedings. This means that, unlike the filing of a
complaint, the Sixth Amendment right to counsel does not attach upon the issuance of
a "Ramey" warrant. Many jurisdictions started using pre-complaint warrants in the
wake of Viray (2005) 134 Cal.App.4th 1186. (See discussion in Ch. 7-IV-B.)
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Note:
2.30a
What system a pre-complaint "Ramey" warrant gets entered into, and/or how
long it remains active in a system, is strictly an agency or administrative
decision. However, the "duration" of a pre-complaint warrant is exactly the
same as any other arrest warrant's would be. In other words, the probable
cause to arrest set forth in a pre-complaint "Ramey" warrant remains valid for
as long as it would in a "regular," post-complaint warrant, which is pretty
much indefinitely. (Pen. Code, §§ 817(a)(2), 813.)
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Case Strategy. Obtaining a pre-complaint "Ramey" warrant prior to arrest sets up the
case for further warrants. It provides a basis for future search warrants and arrest
warrants for codefendants. The probable cause contained in the pre-complaint
"Ramey" warrant is merely updated in person or telephonically.
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Bail Setting. A pre-complaint "Ramey" warrant can specify the amount of bail. After
arrest, the burden shifts to the defense to show why bail should be reduced.
The procedure for obtaining a pre-complaint "Ramey" warrant is spelled out in Penal Code
section 817, which took effect in 1996. This statute includes a suggested form for a "warrant
of probable cause for arrest" and provides that such a warrant (1) shall not begin the
complaint process, (2) has the same authority for service as set forth in section 840, and the
same time limitations as a post-complaint arrest warrant issued pursuant to section 813, and
(3) shall issue if, and only if, the magistrate is satisfied, based on a declaration of probable
cause made by a peace officer, that there is probable cause that the described offense has been
committed and that the described defendant committed it.
Note:
Subdivision (f) of section 817 contains a suggested pre-complaint "Ramey"
warrant form.
Concerning the declaration of probable cause, the statute sets out that it may take the form of
(1) a sworn written statement; (2) a sworn oral statement that is recorded, transcribed, and
filed with the clerk; or (3) an oath that is made using either a telephone and FAX transmission
equipment, or a telephone and e-mail, or a telephone and computer server, as specified.
Under option (3), if the magistrate decides to issue the warrant, the signed and dated copy is
deemed the "original," and the one s/he transmits back to the officer becomes the "duplicate
original."
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Some counties expect and encourage the peace officer to go through this procedure and obtain
a pre-complaint arrest warrant without assistance from the district attorney's staff. In other
counties, however, prosecutors expect to review any probable cause declaration before it is
submitted to the magistrate.
Arrest warrants in general, including pre-complaint "Ramey" warrants, are valid until recalled
by the court. However, it is good practice to attempt service every once in awhile unless you
are positive that such an attempt would be futile.
Note:
You can be sent to prison if you willfully disclose the existence of an arrest (or
search) warrant, prior to its execution, for the purpose of preventing the arrest
(or search). Some exceptions to this rule exist for prosecutors. (Pen. Code, §
168.)
Note:
The "probable cause" necessary to support an arrest warrant is akin to the
probable cause necessary to support a search warrant. The Leon "good faith"
exception applies to arrest warrants as well as search warrants. (Palmer (1989)
207 Cal.App.3d 663, 666.) And an arrest warrant can be attacked for "errors
and omissions" in the same manner as a search warrant. (Belmontes (1988) 45
Cal.3d 744.) See the discussions of "probable cause" and "misstatements and
omissions" in Chapter 6.
Note:
A "bench warrant" should be served in the same manner as a misdemeanor
arrest warrant. (Ramirez (1988) 202 Cal.App.3d 425.)
Note:
If you had an arrest warrant that a court later ruled was invalid for some
reason, the arrest itself would still be good as long as (1) it was made outside
the residence, and (2) it was supported by probable cause. (Wright (1990) 52
Cal.3d 367, 392.)
Confidentiality of victim/witness information. Penal Code section 964 now requires that
information included in all documents submitted to any court, including documents
supporting an arrest or search warrant, not disclose a victim's or witness' confidential personal
information. "Confidential personal information" includes, but is not limited to, "an address,
telephone number, driver's license or California Identification Card number, social security
number, date of birth, place of employment, employee identification number, mother's
maiden name, demand deposit account number, savings or checking account number, or
credit card number."
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A.
Arrests in Homes/The Warrant Requirement
1.
Suspect's Residence
2.31
As a general rule, unless the person is on parole, postrelease community supervision (PRCS),
searchable probation, or mandatory supervision with a search term or you have consent or
exigent circumstances, you must have an arrest warrant in order to arrest someone inside his
home. (Payton (1980) 445 U.S. 573, 576; Marquez (1992) 1 Cal.4th 553, 566; Jacobs (1987)
43 Cal.3d 472, 477-478; see also Gooch (9th Cir. 2007) 506 F.3d 1156--Ninth Circuit
decision approving entry into arrestee's residence to serve a bench warrant for failure to
appear.)
Additionally, (1) you must normally comply with the "knock and notice" provisions of Penal
Code section 844 (Wilkins (1993) 14 Cal.App.4th 761, 769; see discussion, Ch. 3-V); and (2)
you need reasonable grounds to believe that the suspect is inside (Jacobs (1987) 43 Cal.3d
472, 478-479; Downey (2011) 198 Cal.App.4th 652, 662).
"Home" or "dwelling" can mean any place the suspect resides, such as his tent, motel room,
boat, van, etc. (Williams (1988) 45 Cal.3d 1268; Ortiz (1995) 32 Cal.App.4th 286, 291;
LeBlanc (1997) 60 Cal.App.4th 157, 164.) Note, however, that a person standing in the
doorway of a residence is in a "public place" and is subject to arrest without a warrant.
(McArthur (2001) 531 U.S. 326, 335; Schofield (2001) 90 Cal.App.4th 968, 976.)
An arrest warrant is also required for an arrest in those portions of a business or office that are
not open to the general public.
Example:
2.
It was illegal for police, without consent, exigent circumstances, or a warrant, to go
past a receptionist and enter the locked office of an attorney to arrest him for selling
cocaine. (Lee (1986) 186 Cal.App.3d 743, 750.)
Third Party's Residence
If the person you seek to arrest is to be found at someone else's house, you will need a search
warrant (for the suspect's person) unless one of the exceptions, such as consent or exigent
circumstances, applies. (Steagald (1981) 451 U.S. 204; Dyke (1990) 224 Cal.App.3d 648,
658.)
3.
Purpose Behind Requirement
The purpose behind this arrest warrant requirement is the same as the purpose behind a search
warrant. "A man's home is his castle," and police simply are not permitted inside without
judicial authorization (the warrant), an emergency (exigent circumstances), or valid
permission from the occupant (consent).
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Example:
Officer with two misdemeanor arrest warrants for Albrektsen knocked on motel room
where he was staying. Albrektsen answered the door and identified himself.
However, instead of arresting him there at the threshold, the officer brushed past and
entered the room, where he obtained a consent to search. HELD: The entry was not
authorized by the warrant, thus tainting the subsequent consent to search. (Albrektsen
(9th Cir. 1998) 151 F.3d 951.)
It is the intrusion into the dwelling, not the actual arrest inside, that offends the constitutional
standards under Ramey. (Campa (1984) 36 Cal.3d 870, 878-879; Poole (1986) 182
Cal.App.3d 1004; Evans (1980) 108 Cal.App.3d 193.) By understanding this point, the
following exceptions to the general residential warrant requirement should make sense.
B.
Exceptions to the Warrant Requirement
1.
Exigent Circumstances
An arrest warrant is not required to enter someone's premises if, in addition to probable cause,
exigent circumstances exist. (Bacigalupo (1991) 1 Cal.4th 103, 122; Williams (1989) 48
Cal.3d 1112; Wilkins (1993) 14 Cal.App.4th 761, 771.)
"Exigent circumstances" mean an emergency situation requiring swift action to prevent
imminent danger to life or serious damage to property, or to forestall the imminent escape of a
suspect or the destruction of evidence or property. (Ramey (1976) 16 Cal.3d 263, 276; Olson
(1990) 495 U.S. 91; Thompson (2006) 38 Cal.4th 811, 824-825--DUI suspect's
metabolization of alcohol constituted destruction of evidence; Ortiz (1995) 32 Cal.App.4th
286, 291-292--destruction of evidence.)
Example:
Two police officers walking down the hallway of a hotel, seeking a man they had seen
drinking in front, passed by a room with the door partially open. Inside, on a table just
a few feet away, one officer saw some plastic, a knife and a razor, and a woman sitting
on the bed counting out tinfoil bindles. He pushed open the door and entered and,
after opening one of the bindles, arrested the woman. HELD: The warrantless entry
was legal. The exigency (imminent destruction of evidence) was supported by his
reasonable belief that the woman had seen or might have seen the officers together
with the "common knowledge that those who possess drugs often attempt to destroy
the evidence when they are observed by law enforcement officers." Even assuming
the woman had not seen the officers, a stakeout pending a warrant would have been an
impractical and dangerous choice. (Ortiz (1995) 32 Cal.App.4th 286, 293; see also
Hull (1995) 34 Cal.App.4th 1448, 1456-1457.)
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Example:
Note:
Example:
2.32a
Exigent circumstances justified the warrantless entry to apprehend a DUI suspect
given that his blood alcohol level would have dissipated and/or he could have
consumed additional alcohol in the residence to mask his levels while driving, in
combination with the strong evidence that he had committed the dangerous act of a
DUI, his attempt to evade contact with them when they arrived at his residence, and
his attempt to flee through the back door. (Thompson (2006) 38 Cal.4th 811, 827.)
The Ninth Circuit Court of Appeals in a 42 USC § 1983 case has disagreed
with Thompson. The Ninth Circuit said that the California Supreme Court in
Thompson misinterpreted Welsh (1984) 466 U.S. 740 and found that
Thompson was not valid authority for a warrantless entry based on exigent
circumstances associated with a California suspected DUI. (Hopkins (9th Cir.
2009) 573 F.3d 752.) This decision does not affect the viability of Thompson,
and evidence seized in accordance with Thompson would not be subject to
suppression.
It was proper for police to enter a hotel room and check on the condition of a person
whom they saw, through the open door, sitting on a bed with his eyes closed and his
head resting on a dresser next to some heroin because it was reasonable to think he
might have overdosed. (Zabelle (1996) 50 Cal.App.4th 1282, 1287-1288.)
A court is more likely to find exigent circumstances where (1) the crime was especially grave
and/or violent; (2) the suspect may have been armed; (3) there was plenty of probable cause;
(4) there was strong reason to believe the suspect was inside; (5) there was a likelihood the
suspect would escape if not swiftly apprehended; and (6) the entry was made "peaceably."
(Williams (1989) 48 Cal.3d 1112; Bacigalupo (1991) 1 Cal.4th 103, 122.)
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Example:
Exigent circumstances justified a warrantless arrest inside the suspect's residence
where (1) two men had just been shot to death; (2) several persons provided strong
probable cause that the suspect was responsible, that he was likely to be armed, and
that he would be at the apartment he shared with his parents; (3) the suspect was a
Peruvian national who only recently had come to California from New York; and (4)
the suspect was aware that an eyewitness could identify him. (Bacigalupo (1991) 1
Cal.4th 103, 123.)
Further examples of exigent circumstances would include (1) an indication the suspect is
about to leave the area, (2) an ongoing violent crime spree, (3) "hot pursuit, i.e., physically
chasing after the suspect, or (4) "fresh pursuit," i.e., conducting an immediate, uninterrupted,
continuous investigation. (Jessie L. (1982) 131 Cal.App.3d 202; Spain (1984) 154
Cal.App.3d 845.)
Example:
Officer placed a stolen car under surveillance. When suspect approached it, officer
recognized him as someone he had previously arrested for car theft and who had been
armed and dangerous. When officer approached, suspect fled into a private residence
and slammed the door in the officer's face. Warrantless entry to arrest held proper.
(Quinn (1978) 83 Cal.App.3d 609.)
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2.33
Example:
Obvious victim of violent rape reported that her attacker fell asleep in his motel room
where he had forcibly taken her. Warrantless entry proper because otherwise he might
have escaped unidentified. (Kilpatrick (1980) 105 Cal.App.3d 401.)
Example:
Warrantless entry by several officers into a cocaine sales suspect's apartment, 15
minutes after making an undercover buy from the suspect's accomplice, was not
justified by exigent circumstances and was therefore illegal. (Poole (1986) 182
Cal.App.3d 1004.)
Example:
Victim interrupted burglary of his own residence. Vehicle chase ensued, but the
suspect eventually escaped on foot. Victim contacted the police, who traced the
license number and arrested the defendant inside his house about one hour after the
crime. Warrantless entry was proper. (Escudero (1979) 23 Cal.3d 800.)
Example:
Police entered home of suspect to make warrantless arrest 75 minutes after suspect
had shot at a driver at a small-town intersection. The warrantless entry was proper.
(Johnson (1981) 30 Cal.3d 444.)
Example:
Fifteen minutes after an armed robbery, police, acting on license plate and description
leads, arrived at suspect's home and saw the vehicle and one suspect outside. While
detaining her, police observed additional suspects inside, watching. Warrantless entry
was proper to prevent possible violence, escape and destruction of evidence.
(Daughhetee (1985) 165 Cal.App.3d 574.)
Note:
When the possible destruction of evidence is the basis for the claim of exigent
circumstances, courts will probably consider the following five factors: (1) the
degree of urgency involved and the amount of time necessary to obtain a
warrant; (2) the reasonableness of your belief that the contraband was about to
be removed or destroyed; (3) the possibility of danger to any officers who
might have stayed and guarded the site while a warrant was obtained; (4)
information indicating the suspect(s) knew that the police were on their trail;
and (5) the ready destructibility of the contraband, including the knowledge
that narcotics traffickers characteristically destroy the contraband and try to
escape. (Ortiz (1995) 32 Cal.App.4th 286, 292.)
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"Fresh Pursuit." Whether a court will find "fresh pursuit" seems to depend on an unspoken
balance of:
-
how much total time goes by between the crime and the arrest (the less the better;
apparently anything over three hours is pushing your luck);
-
whether the suspect was armed and/or committed a dangerous felony (which includes
burglary) (Dai-re (1980) 104 Cal.App.3d 86); if he's armed and dangerous, an
exigency is more likely to be found (Keltie (1983) 148 Cal.App.3d 773); and
-
the likelihood that evidence may be destroyed.
Example:
Even though over five hours had passed between the time of the crime and the time
officers made a warrantless entry into the suspect's hotel room, the entry was upheld
under the exigent circumstance/fresh-pursuit doctrine because (1) the crime had been
so brutal (a vicious, life-threatening stabbing), (2) the suspect was probably armed and
had a volatile history, (3) the suspect was in town only temporarily and owned a car,
(4) the officers had been engaged in an ongoing field investigation during the entire
interval without any unjustified delays, and (5) there was probably evidence (bloody
clothing) in the room that the suspect might destroy unless arrested promptly.
(Lanfrey (1988) 204 Cal.App.3d 491.)
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2.34a
Remember, too, that before you may legally make a "fresh pursuit" entry into someone's
residence to arrest without a warrant, you must have a reasonable basis for believing the
suspect is inside. (Pen. Code, § 844; Wader (1993) 5 Cal.4th 610, 632.)
Example:
It was illegal for officers to make a warrantless entry of a rape suspect's residence 30
minutes after the crime, where the victim reported the suspect had driven away
afterwards, his car was still gone, and other persons who answered the door also said
the suspect was not there. (White (1986) 183 Cal.App.3d 1199.)
Example:
In Edwards (1981) 126 Cal.App.3d 447, the court found no exigent circumstances to
permit the warrantless arrest of a rape suspect in his house four hours after the crime.
"Generalized fear" about the destruction of evidence was not good enough, even
though the assailant had used a knife.
All of these examples involve a situation where the police are arriving at the residence some
time after the suspect has entered it, and where the offense is a felony. Indeed, the "fresh
pursuit" doctrine is sometimes described as applicable only to fleeing felons. (Olson (1990)
495 U.S. 91, 100.)
"Hot Pursuit." Closely related to "fresh pursuit" is the separate doctrine of "hot pursuit." A
suspect "may not defeat an arrest which has been set in motion in a public place" by the
"expedient of escaping to a private place." (Santana (1976) 427 U.S. 38, 43.) You may
physically pursue a suspect into a residence if you have initiated a lawful detention or arrest
outside the residence, in a public place. This applies to fleeing misdemeanants as well as
persons suspected of committing a felony. (Lloyd (1989) 216 Cal.App.3d 1425, 1428-1430.)
California courts have never directly held that it is legal for you to make a warrantless entry
when you are in "hot pursuit" of someone who committed only an infraction, i.e., a nonjailable offense. However, they reach the same result anyway by observing that it constitutes
a jailable misdemeanor --namely, a violation of Penal Code section 148--when a person who
commits an infraction in your presence refuses to stop or runs away during a detention, for
instance, while you are starting to issue a citation. Therefore, in reporting such an
incident/entry, you should probably emphasize the section 148 aspect or consider whether
Penal Code section 69, a felony, also applies.
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Example:
A motorcycle officer, with red light and siren activated, pursued a speeding motorist
(Calvin) until he stopped at his house, where he exchanged some words with the
officer and then walked inside. After the arrival of backup and some discussion with
Calvin's brother and father, who also lived there but would not let the officers enter,
several officers entered and arrested Calvin, physically subduing his brother in the
process. HELD: The "hot pursuit" warrantless entry was legal because a suspect has
no right to frustrate a legal arrest, which "has been set in motion in a public place," by
fleeing into his home or other private place. This principle applies to both
misdemeanors (here, Pen. Code, § 148) and felonies. (Lloyd (1989) 216 Cal.App.3d
1425, 1428-1430.)
Example:
An officer unsuccessfully tried to stop a motorist who had run two stop signs.
Eventually, the car stopped in front of a house and the passenger and driver ran inside.
The officer, who recognized the driver as being too young to have a license, followed
the juvenile inside and arrested him. HELD: Citing numerous other cases that hold
that "the minor nature of an offense does not preclude a finding of exigent
circumstances," including "hot pursuit," the court found that the warrantless entry was
valid, noting that the juvenile's offenses included jail-time crimes. (Lavoyne M.
(1990) 221 Cal.App.3d 154, 158-159.)
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2.
2.35
Consent
You may enter premises to make a warrantless arrest if a valid consent is obtained. (Escudero
(1979) 23 Cal.3d 800; Wilkins (1993) 14 Cal.App.4th 761, 772-773.) However, a consent
may be invalid for several reasons. For example, consent may be "coerced" (involuntary) if
you obtain it through exerting your authority (e.g., pulling a gun, forcing your way in, or
telling the suspect he has no choice) or "tricking" the suspect by misrepresenting your true
purpose.
Note:
a.
For a full discussion of the "pitfalls of consent," see Chapter 3, "Search and
Seizure - Premises." See also Ch. 2-V-B-5 below, dealing with the problem of
luring a suspect to come outside by means of a trick or ruse.
Tricks/Misrepresentation of Purpose
A consent will be considered "coerced" (involuntary) if you lie about your true purpose for
entering.
Example:
You simply ask for and receive permission to "come in." This should be a valid
consent because you did not state any purpose at all, i.e., you have not misrepresented
your purpose. (Timothy E. (1979) 99 Cal.App.3d 349.)
If the occupant slams the door in your face in such a situation, you are out of luck. You
cannot force your way in after him and claim "hot pursuit" or some other exigency based
solely on refusing permission to enter. (See James (1978) 87 Cal.App.3d 985.)
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Example:
Unsure whether you already have enough probable cause to arrest, you ask for and
receive permission to come inside and talk to the suspect. Once inside, you
investigate further--in good faith--for some time before arresting the suspect. Because
there was no trick or misrepresentation concerning your purpose, the consent to enter
should be valid. (Patterson (1979) 94 Cal.App.3d 456.)
Example:
You go to the home of the suspect's girlfriend to see if he is there. She says she has
not seen him for months. You ask if you can come in and "look around." She agrees.
Inside, you find the suspect and arrest him. The consent to enter is valid because you
did not misrepresent your purpose. (Newton (1980) 107 Cal.App.3d 568.)
b.
Probation/Parole/Supervised Release Conditions
You have the legal authority to enter the residence of any person who is on parole or
postrelease community supervision (PRCS) and any person who is on probation or mandatory
supervision with a "search condition" to conduct a search or to take the person into custody.
(See Lewis (1999) 74 Cal.App.4th 662, 665.) The existence of the search condition makes it
unreasonable for a parolee, PRCS offender, or searchable probationer or supervisee not to
expect their person, residence, or property under their control to be searched. (Reyes (1998)
19 Cal.4th 743.)
Note:
c.
You must have prior knowledge of a resident's parole or PRCS status if you
rely upon the mandatory search condition as authority for a warrantless entry.
(See Sanders (2003) 31 Cal.4th 318.)
Undercover Entries
You may enter premises as part of an undercover operation if valid consent to enter is
obtained from an occupant. The fact that you misrepresent your identity will not invalidate
the consent. (Toubus (1981) 114 Cal.App.3d 378.) Once inside, after the "buy" has taken
place, you will then have probable cause to arrest and may do so without a warrant.
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Example:
d.
2.37
Operator poses as friend of a friend and asks to enter to buy narcotics. Suspect lets
operator in and makes a sale. Warrantless arrest that follows is valid because the
consent to enter was valid. The courts see no trick or misrepresentation of purpose
because the officer's stated or implied purpose was to make a buy, and with that
understanding the suspect agreed to let him enter. In other words, you can
misrepresent your identity, just not your purpose. The suspect takes his chances about
who you really are.
Re-Entries
Be alert to another problem area with undercover operations. It is all right for the operator,
while still inside, to signal for reinforcements who then also enter to actually make the arrest.
(Toubus (1981) 114 Cal.App.3d 378; Cornejo (1979) 92 Cal.App.3d 637.)
However, if the operator physically leaves the premises to get assistance, his subsequent
reentry may be ruled invalid, making the arrest invalid also. Cases go both ways.
Example:
Acting on a tip, an undercover officer went to the defendant's house to try to sell him
some "stolen" guns. He got the suspect's consent to enter, made the sale, then tried to
signal for backup help. However, his transmitter was broken, so he stepped outside
and was 15 feet from the residence when he signaled the others. The court said the
warrantless (re)entry and arrest were bad. The original consent did not apply anymore
and there were no exigent circumstances. (Garcia (1982) 139 Cal.App.3d Supp. 1.)
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Example:
After making an undercover buy, the officer gave the "bust" signal over his transmitter
just before leaving. Moments later, other officers descended upon the premises and
arrested the defendant. The court upheld the entry of the other officers and the reentry of the undercover officer, emphasizing that it occurred immediately after-almost simultaneously with--the first officer's departure. (Cespedes (1987) 191
Cal.App.3d 768.)
Example:
Two officers entered a residence in hot pursuit to arrest a murder suspect. One officer
observed a handgun on the floor but said nothing until the suspect had been placed in
the police car. Moments later, the suspect escaped and was not caught for three hours.
About twenty minutes after the escape and before the residence had been "swept" and
"secured," another officer was directed to enter and retrieve the handgun. HELD:
The re-entry was valid for officer safety and under McDowell in light of the fact the
police never intended to abandon the gun and retrieved it without any inexcusable
delay. (Ngaue (1992) 8 Cal.App.4th 896; see also McDowell (1988) 46 Cal.3d 551.)
3.
When Probable Cause Arises After Entry
If probable cause to arrest arises only after you are already lawfully inside asking questions or
investigating, you may make the arrest without first leaving to obtain an arrest warrant.
Example:
4.
Officers investigating a rape went to the suspect's residence. His mother answered.
They told her about the situation and asked to talk to her son. She let them inside
where they saw in plain view incriminating clothing and scratch marks. The
warrantless entry and arrest were proper--there was no misrepresentation of their
purpose for entering. (Villa (1981) 125 Cal.App.3d 872.)
Possession of a Search Warrant
If your entry is already authorized by virtue of a search warrant, and once inside you find
items that give you probable cause to make an arrest of the occupant, you may arrest him on
the spot. You do not need to first obtain an arrest warrant. (McCarter (1981) 117 Cal.App.3d
894.)
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2.39
Getting Suspect to Come Outside
The warrant requirement exists to keep you from entering someone's residence without
judicial authorization (or exigent circumstances or consent, etc.). But there is nothing
prohibiting you from arresting the suspect outside the premises without a warrant. (Wright
(1990) 52 Cal.3d 367, 392.)
Note:
Example:
Once again, if the suspect says "no" and stays inside, you can't then follow him
in on a "hot pursuit" theory, because you created that situation yourself.
However, if you arrest him outside, and then he runs inside, you may follow
him in without a warrant. (Hampton (1985) 164 Cal.App.3d 27.) But one case
did uphold ordering him out with a bullhorn! (Trudell (1985) 173 Cal.App.3d
1221.)
Police--who may or may not already have had enough probable cause to arrest the
suspect--went to his apartment and (without entering) asked him to come to the
parking lot to identify a car. There (outside) the suspect said the car (which had been
implicated in the crime) was his, so the police arrested him. The California Supreme
Court said there was no Ramey violation because the arrest took place outside.
(Robertson (1982) 33 Cal.3d 21.)
The question of whether it is legal to "lure" a suspect to come outside by means of a "trick" or
"ruse" has never been expressly decided by the state Supreme Court. However, a few, older
court of appeal cases have upheld this technique, whereas a more recent one found such a ruse
to be improper.
Example:
Officers anonymously telephoned some suspected dopers and told them the "cops"
were getting a search warrant for their residence. This caused the suspects to flee,
contraband in hand, whereupon they were met and lawfully arrested without warrants.
(Martino (1985) 166 Cal.App.3d 777, 789; see also Porras (1979) 99 Cal.App.3d 874.)
Example:
At the front door, undercover officer falsely told occupant that he had run into the
occupant's pickup truck, parked nearby. When occupant came outside, he was
confronted by other officers, dressed in "ninja style" raid gear, who obtained consent
to search his person. HELD: The consent was "tainted" by the improper ruse.
"Because the police lure was one that almost no one, crooked or not, would refuse, we
think the police went too far and that defendant's cooperation was involuntary from
the outset." (Reyes (2000) 83 Cal.App.4th 7, 10.)
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The court in Reyes recognized that "tricking out" is a "difficult and unsettled" area of the law.
However, after reviewing past cases, it concluded this ruse was bad because it did not relate
to criminal activity and was so irresistible that it would entice the innocent, as well as the
guilty, to come outside.
Two other important factors used to assess the validity of such a ruse apparently will be (1)
whether you identified yourself as police and (2) whether you already had probable cause to
arrest or, better yet, a warrant. (Reyes (2000) 83 Cal.App.4th 7, 11-13; Michaud (9th Cir.
2001) 268 F.3d 728, 733.)
C.
Forcible Entry/Knock and Notice
Penal Code section 844 is the "knock and notice" statute governing "forcible" entries to arrest.
The requirements of that statute exist whether or not you have an arrest warrant. (Wilkins
(1993) 14 Cal. App.4th 761, 769.) Speaking generally, you must let the people inside know
who you are and why you are there before you can "break in."
Note:
It is considered "breaking in" to go through a screen door, an unlocked door, or
to open a door with a passkey. (Bennetto (1974) 10 Cal.3d 695.)
You must demand admittance and--even though the statute doesn't expressly say so--you
should also wait some reasonable period of time before entering. (Hirsch (1977) 71
Cal.App.3d 987.)
1.
Belief That Suspect Is Present
Although the "knock and notice" requirements for making arrests (Pen. Code, § 844) and
executing search warrants (Pen. Code, § 1531) are generally the same, there is one
requirement which is unique to arrests. For the arrest situation, you must always have
"reasonable grounds" for believing that the suspect is actually inside the premises at the time
you enter (Pen. Code, § 844; Wader (1993) 5 Cal.4th 610, 632; Dyke (1990) 224 Cal.App.3d
648, 658).
"Reasonable grounds" means the same as "probable cause," i.e., enough factual information to
make a person of ordinary caution believe the suspect is inside. (Jacobs (1987) 43 Cal.3d
472, 479.) Just knowing he owns the place, for example, would not be enough. Likewise,
simply knowing the suspect does not work during the day would not justify a daytime entry.
(Jacobs.)
Example:
An officer who had interviewed the defendant at his girlfriend's house three months
earlier, and who saw him there again during the late evening, had a basis to believe he
was still there at 6:15 the next morning, even though one of the two cars parked in
front earlier was no longer there. (Wader (1993) 5 Cal.4th 610, 632-633.)
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2.41
Compliance Excused
The "knock and notice" requirements will be excused under certain limited circumstances.
For instance, you will not have to comply with section 844 if you are aware of facts making it
reasonable to believe:
-
that the suspect is armed and will use his weapon; or
-
that evidence will be destroyed; or
-
that the suspect will escape; or
-
that you are in immediate "hot pursuit" (i.e., that he sees you and knows your
purpose).
But understand that your beliefs must be based on specific facts, not broad, unsupported
presumptions or generalizations.
Example:
Just knowing that the suspect possessed a rifle would not be good enough. You would
need to also know, for instance, that he habitually answered the door with it.
(Bennetto (1974) 10 Cal.3d 695.)
Example:
Seeing a handgun on a coffee table right next to the suspect as you arrived on the
porch no doubt would be specific enough to excuse "knock and notice."
Example:
General knowledge that most narcotics possessors will try to destroy the evidence if
given the opportunity would not be specific enough. You would need to know that
your suspect is actually trying to do so. For instance, suppose you know a sale of
heroin has just occurred. You see the suspect in the bathroom "cutting" heroin as you
approach. After you knock, you see someone peek out between the curtains and then
hear footsteps running back toward the bathroom. You could then force entry without
any further compliance or delay. (Negrete (1978) 82 Cal.App.3d 328.)
Example:
Announcement of purpose was excused for officers who had already knocked and
identified themselves when they confronted the suspect who was wanted for major
felonies and who was known to carry weapons. (Bittaker (1989) 48 Cal.3d 1046.)
A more thorough discussion of "knock and notice" appears in "Search and Seizure Premises," Chapter 3-V.
D.
Effect of Improper Arrest
If your arrest was illegal because you entered a residence without a warrant or exigent
circumstances, or you violated the knock/notice requirements (Pen. Code, § 844), the arrest
itself is still valid: you do not have to release the suspect, and the case will not have to be
dismissed. This is true because, as a practical matter, the probable cause was still there and
you could have simply re-arrested the suspect outside. (Harris (1990) 495 U.S. 14, 18;
Marquez (1992) 1 Cal.4th 553, 568; Watkins (1994) 26 Cal.App.4th 19, 29, 31.)
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For the same reason, post-arrest statements made at the police station, as well as any physical
evidence taken from the defendant's person at the station, should also be admissible despite
the location of the arrest. In other words, if your mistake pertained only to the manner of
making an otherwise valid arrest, continued police custody of the suspect, once he has been
removed from the house, remains lawful and objects or statements obtained later, outside the
residence, would not be "tainted." (See Watkins (1994) 26 Cal.App.4th 19, 29-32.)
On the other hand, anything inside the residence that you observed in "plain view" or
anything obtained from the premises during a search incident to the illegal arrest, would have
to be suppressed. (Watkins (1994) 26 Cal.App.4th 19, 29-32.)
There are other tools that prosecutors can use if a court finds that a search or seizure is
invalid, for example: applying the Leon "good faith" exception to a deficient search or arrest
warrant (Palmer (1989) 207 Cal.App.3d 663, 666); demonstrating that there was enough
probable cause to support the arrest independent from an invalid arrest warrant (Marquez
(1992) 1 Cal.4th 553, 568; Wright (1990) 52 Cal.3d 367, 392); demonstrating that the
violation was purely "statutory" as opposed to mandated by the federal Constitution (Moore
(2008) 553 U.S. 164, 177; McKay (2002) 27 Cal.4th 601, 605; Mateljan (2005) 129
Cal.App.4th 367; Hardacre (2004) 116 Cal.App.4th 1292, 1300; McHugh (2004) 119
Cal.App.4th 202); or proving "inevitable discovery" based on a reasonable probability that the
evidence would have been seized by lawful means (Carpenter (1999) 21 Cal.4th 1016, 1040;
Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1215; Hughston (2008) 168
Cal.App.4th 1062, 1071-1072).
The purpose of this last exception--"inevitable discovery''-- is to prevent setting aside
convictions that would have been obtained without police error. (Robles (2000) 23 Cal.4th
789, 800.) It requires that a factual record be produced to establish what would have
happened if the police error had not occurred, so you can greatly assist a prosecutor by having
facts and/or data that demonstrate that the evidence seized in error would have been
discovered, revealed, or seized by other legitimate means. (See Hughston (2008) 168
Cal.App.4th 1062, 1071-1072.)
Of course, despite these after-the-fact remedies for erroneously obtained evidence, your goal
as a peace officer should always be to avoid making bad arrests (or other illegal searches or
seizures).
VI.
SEARCHES INCIDENT TO ARREST
Incident to a lawful custodial arrest, you are entitled to search the arrestee's person and the
area around her, that is, the area and objects that are under her immediate control. Such a
search is justified simply by the fact of the lawful custodial arrest--suspicion that the
individual is armed or that evidence will be found is not necessary. (Robinson (1973) 414
U.S. 218, 235; King (2013) 133 S.Ct. 1958, 1970-1971; Macabeo (2016) 1 Cal.5th 1206
["officer need not have particularized cause to believe an arrestee is actually armed or
possesses contraband in order to search him"].) The U.S. Supreme Court recognizes that
searches incident to a lawful arrest enable officers to safeguard evidence and ensure their
safety during the process of a custodial arrest. (Moore (2008) 553 U.S. 164.)
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"The lawfulness of the search turns not on whether the officer intended to release the
defendant after taking him into custody, but on whether the officer was justified in arresting
the defendant and taking him into custody in the first place." (Humberto O. (2000) 80
Cal.App.4th 237, 243.) Note that if a search incident to arrest is asserted at a suppression
hearing, the prosecution will have to establish that the officer had grounds for a lawful arrest.
(Knight (2004) 121 Cal.App.4th 1568 [the People failed to establish that possession of a
loaded firearm was prohibited in the location where defendant was detained].) A "lawful"
arrest is one that complies with the U.S. Constitution. (Moore (2008) 553 U.S. 164, 176.)
Example:
A.
Officers arrested Miller in Hill's apartment, reasonably believing that Miller was Hill.
Although they were mistaken and had mistakenly arrested the wrong man, they were
"entitled to do what the law would have allowed them to do if Miller had in fact been
Hill, that is, to search incident to arrest and to seize evidence of the crime the police
had probable cause to believe Hill had committed." (Hill (1971) 401 U.S. 797, 804.)
The Requirement of an Arrest
For the search-incident-to-arrest exception to apply, a custodial arrest is required. It makes no
difference what offense the person is being arrested for, as long as he is taken into custody.
Even if the crime is not one that involves physical "fruits or instrumentalities," and even if
you have no basis for suspecting the person may be armed, you are entitled to conduct a full
search of the person incident to a lawful custodial arrest. (Robinson (1973) 414 U.S. 218.)
However, neither the issuance of a citation nor probable cause for a cite-and-release offense is
enough to invoke the search-incident-to-arrest exception. (Macabeo (2016) 1 Cal.5th 1206;
In re D.W. (2017) 13 Cal.App.5th 1249.) The reason is that the justifications for the
exception--officer safety, preserving evidence, and preventing escape--are not present when
the arrestee will not be taken into custody.
Example:
Macabeo rolled through a stop sign on his bike in a residential neighborhood at 1:40
a.m. in violation of Vehicle Code section 22450. After giving confusing answers
about his probation status, Macabeo consented to his "stuff" being removed from his
pockets. One of the officers examined the contents of the cell phone taken out of
Macabeo's pocket and found images of underage girls, and Macabeo was placed under
arrest. HELD: The existence of a cite-and-release traffic infraction--without a
custodial arrest--did not provide a basis to conduct a search incident to arrest.
(Macabeo (2016) 1 Cal.5th 1206).
Example:
San Francisco police approached a group standing on a street corner following a report
that someone in the area might have a firearm. One officer smelled the odor of
marijuana on 17-year-old D.W.'s clothes and breath, and D.W. admitted that he had
smoked some. This led to the officers searching him for more marijuana and finding a
revolver in his backpack. HELD: The officers did not have probable cause for a
custodial arrest or evidence of anything more than an infraction. They could not rely
on the search incident to arrest exception. (In re D.W. (2017) 13 Cal.App.5th 1249.)
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Example:
Officer arrested Gustafson for driving without his license in his possession. Because
the officer took Gustafson into custody, the arrest justified a full search. (Gustafson
(1973) 414 U.S. 260.) So did a custodial arrest for a violation of Penal Code section
647, subdivision (f) (Boren (1987) 188 Cal.App.3d 1171) and custodial arrests for
"failing to produce satisfactory evidence of identification" under Vehicle Code section
40302, subdivision (a) (McKay (2002) 27 Cal.4th 601, 620-625; Monroe (1993) 12
Cal.App.4th 1174, 1195).
A search incident to arrest will be valid even if the offense you made the arrest for is
"bailable" (Castaneda (1995) 35 Cal.App.4th 1222, 1228) or involves a minor whom you take
into "temporary custody" before releasing him at juvenile hall or his home or school
(Humberto O. (2000) 80 Cal.App.4th 237). The critical point is that the arrestee is in custody.
Example:
An officer arrested a juvenile at 1:00 a.m. for "prowling." The officer intended to
drive the minor home in the patrol car and release him to his parents. The officer
handcuffed the minor and searched him, finding cocaine in one of his pockets.
HELD: The search was lawful based on the valid custodial arrest, even though there
was no intent to book or incarcerate the minor. (Demetrius A. (1989) 208 Cal.App.3d
1245; Charles C. (1999) 76 Cal.App.4th 420, 424-425.) (Note: The same rule applies
when a minor is taken into "temporary custody" for a violation of a curfew ordinance.
(Giovanni B. (2007) 152 Cal.App.4th 312, 321; Ian C. (2001) 87 Cal.App.4th 856.)
Example:
The "arrest" of a juvenile for truancy (Ed. Code, § 48265) justified searching his
backpack prior to driving him to the school a few blocks away. (Humberto O. (2000)
80 Cal.App.4th 237.)
Example:
An arrest for public intoxication (Pen. Code, § 647, subd. (f)) justified reaching into
the arrestee's pocket and taking out his wallet to look for identification (Sanchez
(1985) 174 Cal.App.3d 343; see also Boren (1987) 188 Cal.App.3d 1171) and retrieve
suspected bindles of narcotics detected during a patdown (Dennis (1985) 172
Cal.App.3d 287).
B.
The Area/Items Subject to Search
The area that may be searched incident to an arrest is limited to the area within the
"immediate control" of the suspect. This generally means the area within "arm's reach" of the
arrestee--the nearby physical area from which he, in theory, could grab a weapon or destroy
or conceal evidence. (Chimel (1969) 395 U.S. 752.) Obviously, it includes the arrestee's
person, and it can be a full search. (Robinson (1973) 414 U.S. 218, 233-234; Guajardo
(1994) 23 Cal.App.4th 1738, 1742.) The Supreme Court has recognized that because of the
"potential dangers lurking in all custodial arrests," a search of items within the area of the
arrestee's "immediate control" are reasonable "without requiring the arresting officer to
calculate the probability that weapons or destructible evidence may be involved." (Chadwick
(1977) 433 U.S. 1, 14-15; Diaz (2011) 51 Cal.4th 84; see also Riley (2014) 134 S.Ct. 2473,
2485 ["unknown physical objects may always pose risks, no matter how slight, during the
tense atmosphere of a custodial arrest"].)
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In addition to a search of the arrestee's person and the area within arm's reach, the incident-toarrest exception also applies to the search of all personal property "immediately associated"
with the arrestee's person. For instance, in Robinson, the item subject to lawful search was a
crumpled-up cigarette package found in the breast pocket of the arrestee's coat. (Robinson
(1973) 414 U.S. 218, 222-223.) The reasoning is that the loss of privacy upon arrest extends
to the personal property immediately associated with the arrestee at the time of the arrest.
(Diaz (2011) 51 Cal.4th 84.)
Example:
In making a custodial arrest for involvement in a credit card scheme, it was proper for
the police to look through an address book on the suspect's person, even though the
evidentiary value of the book was not apparent at that time. (Holzman (9th Cir. 1989)
871 F.2d 1496.)
Certain containers that are on the arrestee's person or under his or her immediate control at
the time of the arrest--such as a purse, fanny pack, or backpack--may also be searched
incident to arrest. (Belton (1981) 453 U.S. 454; Dennis (1985) 172 Cal.App.3d 287;
Rodriguez (9th Cir. 1989) 869 F.2d 479.) The container must be an item of personal property
immediately associated with the arrestee's person. A 200-pound double-locked footlocker in
the trunk of a car does not fit within this definition. (See Chadwick (1977) 433 U.S. 1.)
Modern cell phones, capable of containing "vast quantities of personal information," also fall
outside the search-incident-to-arrest exception. (Riley (2014) 134 S.Ct. 2473, 2484-2485.)
Note:
In Gant, the U.S. Supreme Court restricted the Belton "incident-to-arrest" rule
for vehicle searches. Under Gant, a vehicle search incident to arrest is not
allowed if the arrestee has been secured and is not within reaching distance of
the passenger compartment--unless the officer has reason to believe that the
vehicle contains evidence of the arrest offense. (Gant (2009) 556 U.S. 332,
335.) Gant was not applied to nonvehicle searches, but it is certain to yield
defense arguments that it should be. (See Maddox (9th Cir. 2010) 614 F.3d
1046--officer could not search the vial on arrestee's keychain after arrestee was
handcuffed in the backseat of the police car.) However, in California, Chimel
and Robinson remain good law. See Chapter 4 for a full discussion of Gant
and its application to vehicle searches.
Weapons. It is always legal to conduct a limited patdown search for weapons when you are
going to transport or travel in close proximity to the arrestee, no matter what the arrest is for,
or anytime you have facts making it reasonable to be concerned for your safety. (Laiwa
(1983) 34 Cal.3d 711; Brisendine (1975) 13 Cal.3d 528; Barnes (1983) 141 Cal.App.3d 854.)
Additionally, Penal Code section 833 specifically authorizes a peace officer to search any
person whom the officer has legal cause to arrest whenever the officer "has reasonable cause
to believe that the person possesses a dangerous weapon." The officer may take and keep any
dangerous weapon until the completion of questioning, at which time the weapon will be
returned or the person arrested for a crime, including illegal possession of the weapon found
in the search.
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Probable Cause Searches Versus Incident-to-Arrest Searches. A search of a person based on
probable cause is different from a search incident to arrest. If an officer has probable cause to
believe that evidence, "fruits and instrumentalities" of the crime, contraband, or illegal
weapons, are present, a search of the person is proper.
Example:
Note:
1.
After making a traffic stop, officers observed a partially smoked, hand-rolled cigarette
on the front console and placed the driver under arrest for possession of less than one
ounce of marijuana. A custodial arrest was not authorized if the driver produced
proper identification, which he did. The officers nonetheless had probable cause to
justify a limited search for contraband based on the presence of the marijuana
combined with their information about the driver's narcotics activity and his conduct
before the traffic stop. (Coleman (1991) 229 Cal.App.3d 321, 326.)
Although it would not justify a search without additional factors, one
published federal case recognized as a matter of law that narcotics dealers
frequently hide narcotics near their genitals. (Rodney (D.C. Cir. 1992) 956
F.2d 295, 297; see Smith (2009) 172 Cal.App.4th 1354, 1364.)
Cell Phones Searches Incident to Arrest
On June 25, 2014, a unanimous Supreme Court ruled that digital data in cell phones may not
be searched incident to an arrest. (Riley (2014) 134 S.Ct. 2473.) Without a showing of
exigent circumstances or some other exception to the warrant requirement, a search warrant is
required to search the data in a cell phone.
The reason is that modern cell phones are minicomputers capable of holding vast amounts of
personal information--more than could be carried in a pocket and possibly more than could be
stored in the footlocker in Chadwick. (Riley (2014) 134 S.Ct. 2473, 2491.) Officers may still
search objects as provided in Robinson (1973) 414 U.S. 218, but the Court declined to extend
Robinson to searches of digital data on cell phones.
Can cell phones be seized? Yes. Can you examine them? The Court stated that "[l]aw
enforcement officers remain free to examine the physical aspects of a phone to ensure that it
will not be used as a weapon--say, to determine whether there is a razor blade hidden between
the phone and its case." (Riley (2014) 134 S.Ct. 2473, 2485.)
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The Court also acknowledged that data stored in cell phones is vulnerable to remote wiping
and discussed ways that data could be preserved by officers until a search warrant was
obtained. The Court specifically identified the use of Faraday bags to block remote access to
a phone. Turning off the phone or removing the battery were also identified as measures to
prevent remote wiping. (Riley (2014) 134 S.Ct. 2473, 2487.) [Note: You will want to check
with your agency regarding the practical benefits/risks of particular measures to prevent
remote wiping.]
The Court further noted that a warrantless search of cell phone data could be justified based
on exigent circumstances, which would have to be evaluated on a case-by-case basis.
Examples of exigent circumstances include dangers to arresting officers by confederates, the
need to assist persons who are seriously injured or are threatened with imminent injury,
pursuit of a fleeing suspect, or facts indicating that an arrestee's phone is an actual target
(versus a general theoretical target) of an imminent attempt to wipe the data by remote access.
(Riley (2014) 134 S.Ct. 2473, 2487-2488, 2494.)
Riley represents a change of law for incident-to-arrest cell phone searches in California. Prior
to Riley, the law in California was settled that officers could search cell phones incident to a
lawful arrest. (Diaz (2011) 51 Cal.4th 84.) When a U.S. Supreme Court decision results in a
change of law, evidence obtained in searches conducted prior to the change of law should not
be subject to suppression. (See Davis (2011) 131 S.Ct. 2419, 2428-2429 [regarding the Gant
revision of the Belton rule for car searches].) The reason is that, under Herring (2009) 555
U.S. 135, application of the exclusionary rule requires both culpable conduct and a deterrent
effect--neither of which is present when officers follow controlling decisional law.
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2.47
The "Contemporaneous" Requirement
Generally, a search will be valid as incident to an arrest if the search and arrest were carried
out "contemporaneously." This means they must occur at the same location and at
approximately the same time, although either may precede the other slightly. (Rawlings
(1980) 448 U.S. 98; Lennies H. (2005) 126 Cal.App.4th 1232; Gonzales (1989) 216
Cal.App.3d 1185; Fay (1986) 184 Cal.App.3d 882.) The general rule is that if you wait to
search the arrestee or a container in his possession until some substantial time afterwards, the
search cannot be justified as "incident" to the arrest. (Belton (1981) 453 U.S. 454; Preston
(1964) 376 U.S. 364.)
Example:
Police arrested Ingham in the living room of her home. Her large purse was on the
floor of the room. At her request, Ingham was permitted to retrieve a small wallet
from the purse and take it with her downtown. On their own, the police brought the
purse along, searched it later, and discovered contraband. HELD: Although the
police could have legally searched the purse at the time of the arrest, this incident-toarrest justification was lost because of the delay. Furthermore, there was no
independent probable cause to search the purse and it could not be considered a valid
part of the booking process because Ingham did not choose to take it with her when
she left home. Therefore, the contraband found in the purse was suppressed. (Ingham
(1992) 5 Cal.App.4th 326.)
An exception to the general rule applies, however, if the search "incident" to arrest is
conducted when the arrestee arrives at a place of detention. The rationale for this exception is
that the arrestee is "'no more imposed upon' by a delayed search 'than he [or she] could have
been' by a warrantless search 'at the time and place of the arrest.'" (Diaz (2011) 51 Cal.4th
84; Edwards (1974) 415 U.S. 800, 803.)
Example:
Edwards was taken to jail after being arrested for attempting to break into a post
office. Ten hours later, the police took his clothes to hold as evidence in case paint
chips from the post office window were present. The U.S. Supreme Court held that
the seizure of his clothes and later forensic search of the items he had been wearing
were valid as a search incident to arrest despite the time delay. (Edwards (1974) 415
U.S. 800, 803-809; Diaz (2011) 51 Cal.4th 84 [search of property conducted 90
minutes after arrest at station].)
A search incident to arrest may occur closely before an arrest if you already have probable
cause for the arrest. However, if the search takes place before the arrest, even momentarily, it
will not be legal if you do not have probable cause to arrest at the time of the search. In other
words, you cannot "bootstrap" the situation by using what you find during the search to
provide probable cause for the arrest: the probable cause had to be there beforehand. (Smith
(1990) 494 U.S. 541; Adams (1985) 175 Cal.App.3d 855.)
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VII.
SEARCH AND SEIZURE - PERSONS
EMERGENCY SEARCHES
A true emergency situation or "exigency" will allow you to search a person, just as it will
allow you to search a house, vehicle, or anything else. But this exception to the general
warrant requirement is fairly narrow. Typically, it arises--with reference to people--when you
are giving assistance during a medical emergency.
Example:
Officer discovers a man passed out from drinking and is checking for a Medic-Alert
card in his wallet when he finds contraband. The warrantless search would be valid.
An anonymous tip that someone is carrying a concealed firearm is not a sufficient exigency
under the "public safety exception" to justify a search or even a Terry stop and frisk. (J.L.
(2000) 529 U.S. 266, 272-273; Jordan (2004) 121 Cal.App.4th 544.)
For a more detailed discussion of the emergency exception, see "Search and Seizure Premises," Chapter 3.
VIII.
CONSENT SEARCHES
"Consent" is another valid basis for a warrantless search of a person (or place, vehicle,
container, etc.), and you should always try to obtain consent. "Police officers act in full
accord with the law when they ask citizens for consent." (Drayton (2002) 536 U.S. 194.)
Example:
As part of a drug interdiction effort, sheriff's deputies in "raid" jackets boarded a bus
at a scheduled stop and asked passengers for permission to search their luggage. The
U.S. Supreme Court said that such consent can be voluntary. It depends, based on all
the circumstances surrounding the encounter, whether a reasonable--and "innocent"-passenger would feel free to decline the officers' requests or otherwise terminate the
encounter. (Bostick (1991) 501 U.S. 429; Drayton (2002) 536 U.S. 194.)
There are problems you must watch out for, such as whether the consent is "voluntary." For a
discussion about the consent exception, see "Search and Seizure - Premises," Chapter 3.
In general, however, the law is well established that it is fully possible for a person to give
voluntary consent, even though the person has been detained (e.g., Ratliff (1986) 41 Cal.3d
675, 686-687; Miller (1999) 69 Cal.App.4th 190, 203) or, indeed, arrested and handcuffed
(Monterroso (2005) 34 Cal.4th 743, 758; James (1977) 19 Cal.3d 99, 109-110). On the other
hand, consent will not be voluntary if it was preceded by an illegal detention or an illegal
arrest. (Wilson (1983) 34 Cal.3d 777, 791; In re J.G. (2014) 228 Cal.App.4th 402; Stier
(2009) 168 Cal.App.4th 21; Antonio B. (2008) 166 Cal.App.4th 435, 442; Valenzuela (1994)
28 Cal.App.4th 817.)
Example:
Driver was handcuffed during a traffic stop based on his size--6'6"--and after the
passenger was found in possession of narcotics. HELD: The officer did not have a
reasonable basis for believing that the driver posed a safety or flight risk; accordingly,
the use of handcuffs was not justified during a detention and the driver's consent to
search was not "voluntary." (Stier (2009) 168 Cal.App.4th 21.)
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As to scope of consent, the test is one of "objective reasonableness"--whether consent would
be reasonably understood to include the area to be searched. (Jimeno (1991) 500 U.S. 248,
252; Russell (9th Cir. 2012) 664 F.3d 1279.) The person's words and actions can be
considered in determining scope. (Russell (9th Cir. 2012) 664 F.3d 1279, 1282-1283.)
Example:
IX.
After airport personnel flagged Russell as a possible drug courier, an airport police
officer approached, said they were investigating narcotics, told Russell he was free to
go, and obtained his consent to search his bag and person. Russell spread his arms
and legs to facilitate the search. Working his way up from his ankles, and without any
protest from Russell, the officer patted the outside of Russell's pants up to the groin
area, where he felt something hard and unnatural. HELD: The outer-clothing search
of Russell's groin area did not exceed the scope of his consent. A reasonable officer
would have understood that Russell's general consent to a narcotics search included a
patdown of all areas of the body, including the groin, where narcotics are often
hidden. (Russell (9th Cir. 2012) 664 F.3d 1279.)
SEARCHES AND SEIZURES OF EVIDENCE FROM A SUSPECT'S BODY1/
There are various ways that evidence may come to be located inside a suspect's body. For
example,
-
a suspect may try to hide it there (e.g., by swallowing it, or placing it inside a body
cavity);
-
the evidence may be stored there naturally for some period of time (e.g., alcohol,
drugs), or permanently (e.g., DNA); or
-
the evidence may be stored there unnaturally (e.g., a bullet).
In these situations, recovering the evidence constitutes a "search" of, if not also a "seizure
from," the suspect's body. (Schmerber (1966) 384 U.S. 757, 767.)
Because such searches may be highly invasive, embarrassing, and sometimes risky, the courts
have imposed some special requirements that must be met before officers may conduct a
bodily intrusion search or authorize a medical professional or technician to do so. Whether
the search is authorized by a warrant, court order, or incident to a lawful arrest, police must
employ reasonable procedures in conducting the search. (Schmerber (1966) 384 U.S. 757,
768.)
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1. DOJ gratefully acknowledges Point of View (Spring 1998), a publication by the Alameda County District
Attorney's Office, for the organization and much of the text and case law in this section.
California Peace Officers Legal Sourcebook
2.50
A.
SEARCH AND SEIZURE - PERSONS
Bodily Intrusion Search Warrants
A warrant can authorize a bodily intrusion search but must say so expressly. Thus, a bodily
intrusion search would not be covered or included by a warrant that simply authorized search
of the suspect's "home, vehicle, and person." (Bracamonte (1975) 15 Cal.3d 394, 401;
Jaurequi (1986) 179 Cal.App.3d 1160, 1164.)
Like every warrant, a bodily intrusion search warrant must be supported by facts contained in
an affidavit. However, unlike a standard warrant, a bodily intrusion warrant requires more
than the usual probable cause to search. This extra showing is sometimes referred to
as"probable cause plus."
"Probable cause plus" means that, in addition to demonstrating a fair probability that the
search will result in the discovery of evidence of a crime, the affidavit must also show that the
need for the evidence outweighs the reasonably foreseeable danger and intrusiveness of the
procedure. (Lee (1985) 470 U.S. 753, 759-761.)
"[T]he more intense, unusual, prolonged, uncomfortable, unsafe or undignified the procedure
contemplated, or the more it intrudes upon essential standards of privacy, the greater must be
the showing for the procedure's necessity." (Scott (1978) 21 Cal.3d 284, 293; Lee (1985) 470
U.S. 753, 760.)
The affidavit should demonstrate a strong need for the search, which may include:
-
probable cause, i.e., the likelihood the search will result in the discovery of relevant
evidence;
-
the seriousness of the crime;
-
the importance of the evidence, i.e., the extent to which it is necessary to establish
guilt;
-
the practicality of using other, less intrusive means, if any exist, to establish guilt;
-
the extent to which the search may threaten the suspect's health and safety or result in
psychological harm; and
-
the extent to which the search may intrude on the suspect's dignity and privacy
interests. (Lee (1985) 470 U.S. 753, 761-766; Scott (1978) 21 Cal.3d 284, 293-295;
Nokes (1986) 183 Cal.App.3d 468, 479.)
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2.51
Blood Test Warrants
Police commonly seek a warrant to authorize testing of a suspect's blood for alcohol or drugs.
Because blood tests are considered so common, safe, reliable, and relatively non-intrusive
(Schmerber (1966) 384 U.S. 757, 771; Breithaupt (1957) 352 U.S. 432, 436), warrants for
blood tests require only a "very slight" additional showing of need. (Johnetta J. (1990) 218
Cal.App.3d 1255, 1276.)
An affidavit for a blood test warrant usually will be sufficient if it establishes that
2.
-
there is probable cause to believe the test results will constitute evidence of a crime
(see Wright (9th Cir. 2000) 215 F.3d 1020, 1025); and
-
the removal of the blood will be conducted by trained medical personnel and in
accordance with accepted medical practices (Schmerber (1966) 384 U.S. 757, 771772; Lee (1985) 470 U.S. 753, 761; Johnetta J. (1990) 218 Cal.App.3d 1255, 1276).
Warrants for Surgery and Internal Probing
Because a search inside a suspect's body by means of surgery or cavity probing is unusual,
highly intrusive, and sometimes dangerous, a warrant will issue only upon a very strong
showing of need.
Example:
B.
Prosecutors obtained a court order to have a robbery suspect undergo a general
anesthetic operation to remove a bullet, fired by the victim, which had lodged under
his collarbone, in order to corroborate his identification as the robber. HELD: The
order should not have issued in light of the intrusiveness and inherent risks of the
operation, in combination with the fact the prosecution already had good evidence of
identification, given that the suspect had been arrested near the crime scene shortly
after the robbery, was sporting a new gunshot wound, and matched the description
given by the shopkeeper/victim. (Lee (1985) 470 U.S. 753.)
Warrantless Bodily Intrusion Searches
In general, a warrantless bodily intrusion search will be upheld, incident to a lawful arrest, if
-
there is probable cause to arrest the suspect;
-
there is probable cause to search, i.e., to believe that the test would result in discovery
of evidence of the crime;
-
the need outweighs the intrusiveness; and
-
exigent circumstances exist. (Schmerber (1966) 384 U.S. 757, 768-771; West (1985)
170 Cal.App.3d 326, 334.)
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1.
SEARCH AND SEIZURE - PERSONS
Blood Samples
In the case of drawing blood for testing for alcohol or drugs, warrantless searches are
permitted incident to a lawful arrest, if
-
there was probable cause to arrest the suspect for a crime in which the existence of
alcohol or drugs in the bloodstream would be relevant in a criminal proceeding;
-
the blood is drawn by trained medical personnel in accordance with accepted medical
practices (see Mercer (1991) 53 Cal.3d 753, 760); and
-
under the totality of the circumstances, a delay in obtaining a warrant would result in
the destruction of evidence as a result of the natural metabolization of alcohol or drug
levels in the blood (McNeely (2013) 133 S.Ct. 1552).
Historically, under Schmerber (1966) 384 U.S. 757, a warrant was not required because (1)
the "evanescent" quality of the evidence automatically provides exigent circumstances, i.e.,
the level of alcohol or drugs in the blood becomes less simply due to the passage of time and
(2) blood testing is considered common, safe, reliable, and relatively non-intrusive.
In McNeely, the court disagreed that Schmerber excused the warrant requirement in all DUI
cases. The court imposed the requirement of a case-by-case determination whether, under the
totality of the circumstances, exigent circumstances based on the destruction of evidence were
present. If a warrant can be obtained during the time that the blood evidence would maintain
its integrity--such as during the time it would take to transport the driver to the hospital and
complete the paperwork for a forcible blood draw--then exigent circumstances may not be
present. (McNeely (2013) 133 S.Ct. 1552; accord, Birchfield (2016) 136 S.Ct. 2160.)
Note:
Blood alcohol evidence from a warrantless blood draw conducted prior to the
McNeely decision is not subject to suppression based on binding California
precedent that did not require a warrant under Schmerber. (Rossetti (2014)
230 Cal.App.4th 1070, 1076-1077; Youn (2014) 229 Cal.App.4th 571, 579;
see Jimenez (2015) 242 Cal.App.4th 1337.)
Also, a warrant would not be required if the DUI arrestee has a search condition and officers
are aware of the search condition or the arrestee's searchable status prior to the warrantless
blood draw. (Jones (2014) 231 Cal.App.4th 1257.) Further, even post-McNeely, a blood
draw complies with the Fourth Amendment if a driver submits to a blood test after being
advised of the implied consent law. (Harris (2015) 234 Cal.App.4th 671.)
Example:
Note:
After arresting Harris for a narcotics DUI, the deputy told him he did not have the
right to consult a lawyer before deciding whether to submit to a chemical test, his
license would be suspended if he refused to submit to a chemical test, and his refusal
could be used against him in court. Harris responded, “okay,” and he never appeared
unwilling to provide a blood sample, even when the phlebotomist drew the sample.
HELD: Under the totality of the circumstances, Harris "freely and voluntarily
consented" to the blood draw. (Harris (2015) 234 Cal.App.4th 671.)
See Ch. 17-III-J for a more extended discussion of DUI blood draws.
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Example:
2.
2.53
Exigent circumstances justified a nonconsensual warrantless blood draw following a
traffic accident injuring at least one person. The injured party required medical care
and the driver who was suspected of impaired driving was combative to the point of
requiring physical restraints, which delayed the investigation and prevented the
officers from conducting field sobriety tests. Yelling profanities at the officers, the
driver refused to provide information that would help them determine when he had
stopped drinking. It took two hours to subdue the driver and transport him to the CHP
station. These facts satisfied the new McNeely requirements. (Toure (2015) 232
Cal.App.4th 1096.)
Stomach Pumping/Vomiting
If the suspect swallowed evidence, such as heroin-filled balloons, it may be possible to
recover the evidence simply by waiting for it to pass through the person's digestive tract.
On the other hand, if the suspect has swallowed an object that could result in serious injury or
death, it may be necessary to recover the object immediately by having a physician pump the
suspect's stomach or by having a physician administer a solution (emetic) to induce vomiting.
Because such procedures are so highly intrusive and unusual, as well as an affront to the
person's dignity and privacy (Rochin (1952) 342 U.S. 165, 172), stomach pumping and forced
vomiting are generally permitted only if the suspect voluntary consents, either expressly or
implicitly, by cooperating with a doctor in carrying out the procedure, after having been
informed of the danger of ingesting such objects (Bracamonte (1975) 15 Cal.3d 394, 401;
Jones (1971) 20 Cal.App.3d 201, 209).
If the suspect refuses to give consent in a life-threatening situation, decisions concerning
removal of the object should be left to the treating physician.
3.
Other Warrantless Body Searches
Under certain circumstances, warrantless visual body cavity searches, and even warrantless
physical body cavity searches, of an arrestee for certain misdemeanors and infractions may be
permissible at jail facilities, although a search warrant is often required for physical searches
of this type. (See discussion under "Strip Searches" in Ch. 5-VIII-C; see also Wade (1989)
208 Cal.App.3d 304, 307-309.)
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SEARCH AND SEIZURE - PERSONS
Taking hair or saliva samples from arrestees probably does not implicate the Fourth
Amendment because there is no "bodily intrusion," although it never hurts to first obtain a
warrant or court order. (Osband (1996) 13 Cal.4th 622, 673.) Taking these samples does not
implicate the Fifth Amendment right against compelled self-incrimination because the
samples are not "testimonial" in nature. (Edmo (9th Cir. 1998) 140 F.3d 1289, 1292; Thomas
(1996) 180 Cal.App.3d 47, 52.)
Fingernail scrapings may also be taken from a suspect against his will and without a warrant
because the intrusion is technically nonexistent or so minimal and the exigency of the
evidence being lost is so high. (Murphy (1973) 412 U.S. 291, 295-296.)
AIDS/HIV Testing. Penal Code sections 1202.1 and 1202.6 provide that persons convicted of
designated sex offenses are required to submit a blood sample for AIDS testing. These
statutes have been upheld against various constitutional challenges. (McVickers (1992) 4
Cal.4th 81, 88; Love (1990) 226 Cal.App.3d 736, 740-747; but see Barlow (9th Cir. 1991)
943 F.2d 1132, 1138, where the Ninth Circuit found it illegal for police to withdraw blood
without a warrant from an arrested demonstrator who had bitten two officers during a scuffle
and who was thought to possibly have AIDS because the exigencies were insufficient.)
For a more thorough discussion of "AIDS" and "HIV" testing, see Chapter 6-XIX.
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C.
2.55
Use of Force
If police have a legal right to conduct a bodily intrusion search, either with or without a
search warrant or court order, reasonable force may be used to carry out the search. (Johnson
(1991) 231 Cal.App.3d 1, 15; Jones (1989) 209 Cal.App.3d 725, 729; Cappellia (1989) 208
Cal.App.3d 1331, 1337-1338.)
Reasonable force is not brutal or excessive force, but rather only the degree of force that is
necessary to overcome the suspect's resistance. (Fulkman (1991) 235 Cal.App.3d 555, 562.)
In determining what degree of force is reasonable, courts will consider
1.
-
the seriousness of the crime;
-
the extent of resistance or use of force by the suspect;
-
the degree of force used by the officers and whether it threatened the health of the
suspect; and
-
the extent to which the officers' force was an affront to the suspect's personal privacy
and bodily integrity. (Lee (1985) 470 U.S. 753, 761; Kraft (1970) 3 Cal.App.3d 890,
899; Cappellia (1989) 208 Cal.App.3d 1331, 1338.)
Force to Obtain a Blood Sample
The rule is the same for blood samples: officers may use reasonable force--i.e., the amount
necessary to overcome a suspect's resistance--to obtain a blood sample from a person
suspected of DUI or other offense. (Carleton (1985) 170 Cal.App.3d 1182, 1188; see Rossetti
(2014) 230 Cal.App.4th 1070.)
Example:
It was permissible for six people to hold down a "combative" arrestee who had been
arrested for DUI and two counts of vehicular manslaughter during the blood draw,
which showed a BAC level of .20. (Carleton (1985) 170 Cal.App.3d 1182, 1188; see
also Fiscalini (1991) 228 Cal.App.3d 1639, 1644.)
Example:
It was not proper for officers to be "aggressive beyond all need" in the course of
getting a DUI suspect ready to have his blood drawn, including hitting him in the face
with a closed fist. (Kraft (1970) 3 Cal.App.3d 890.)
For purposes of the DNA Act of 1998 (Pen. Code, § 295 et seq.), the use of reasonable force
to collect DNA samples and print impressions is authorized by statute. (Pen. Code, § 298.1,
subd. (b).)
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2.
SEARCH AND SEIZURE - PERSONS
Removing Evidence from Suspect's Mouth
Often suspects, especially drug dealers or users, will hide evidence in their mouths so they
can, if necessary, dispose of it by swallowing.
If officers have probable cause to believe there is evidence in a suspect's mouth, they may use
reasonable force to remove it, on grounds of preventing the destruction of evidence.
(Cappellia (1989) 208 Cal.App.3d 1331, 1336; Johnson (1991) 231 Cal.App.3d 1, 14;
Fulkman (1991) 235 Cal.App.3d 555, 562.)
The use of reasonable force may also be justified as necessary for the suspect's safety. For
example, force would be allowed if the size of the object created a very real danger that it
would become lodged in the suspect's throat if swallowed or if officers reasonably believed
the suspect was about to swallow drugs. (Cappellia (1989) 208 Cal.App.3d 1331, 1339-1340;
Fulkman (1991) 235 Cal.App.3d 555, 564.)
If only minimal force is necessary to recover the evidence, the search will likely be upheld
because there is such a minor invasion of personal privacy and security. (Cappellia (1989)
208 Cal.App.3d 1331, 1338.)
However, problems arise if the suspect refuses to open his mouth and either attempts to
swallow the evidence or it reasonably appears that he is about to do so. Police may attempt to
prevent swallowing by exerting minimal pressure in the neck area, so long as such pressure
does not choke or otherwise impair the suspect's breathing.
However, a "chokehold" is illegal as excessive force and too dangerous because it may
prevent the suspect from breathing and may also obstruct the flow of blood to the brain.
(Jones (1989) 209 Cal.App.3d 725, 730; Johnson (1991) 231 Cal.App.3d 1, 16.)
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2.57
On the other hand, if the substance is life-threatening, and you are seeking to save a life rather
than solely to prevent the destruction of evidence, the exigencies are greater and courts are
more likely to approve whatever reasonable force was necessary to retrieve the object.
(Cappellia (1989) 208 Cal.App.3d 1331; Jones (1989) 209 Cal.App.3d 725; Fulkman (1991)
235 Cal.App.3d 555, 564.)
Note:
D.
These guidelines apply to searches both inside and outside of jails or prisons.
For more on jail searches, see Ch. 5-VIII. For a discussion of the forcible
extraction of fluid samples from suspected drunk drivers, see Ch. 17-III-J.
Drug Testing
In two 1989 cases, the United States Supreme Court upheld mandatory drug testing of certain
public employees, without a warrant or even reasonable suspicion.
One case, Von Raab (1989) 489 U.S. 656, involved mandatory urine drug tests of United
States Customs employees seeking transfer or promotion to positions that (1) are directly
involved in drug interdiction or (2) require firearms to be carried.
The other case, Skinner (1989) 489 U.S. 602, involved regulations of the Federal Railroad
Administration requiring alcohol and drug tests for railroad employees involved in certain
train accidents.
The Supreme Court ruled that such tests (mandatory, narrowly limited, blood, breath or urine
samples) are indeed "searches" governed by the Fourth Amendment but concluded that they
are "reasonable" because the "compelling governmental interests" outweigh the privacy
concerns of the employees.
These cases, which were fairly close, should probably not be read to mean more than that the
government has a right to drug-free work places in safety-sensitive areas and positions. (See
Smith (1999) 72 Cal.App.4th 147, 156-167, for a thorough discussion of this topic and a
review of many relevant cases.)
Thereafter, in Hill (1994) 7 Cal.4th 1, the California Supreme Court ruled, based primarily on
the theory of "consent," that the NCAA drug-testing program for student athletes did not
violate their state constitutional right to privacy. The court specifically noted the NCAA's
interest in safeguarding the integrity of intercollegiate sports, but it backed away from the
"compelling interest" standard.
In Vernonia School District (1995) 515 U.S. 646, the U.S. Supreme Court upheld random,
suspicionless urinalysis of public school students who participate in interscholastic athletics
based primarily on the reduced expectation of privacy that students in general have, and
athletes in particular, balanced against the severity of the drug problem in schools and student
athletic programs.
Vernonia has been extended to mandatory drug testing for students participating in all
extracurricular activities. (Board of Education (Pottawatomie County) v. Earls (2002) 536
U.S. 822.) The Supreme Court held that the Tecumseh, Oklahoma, School District's student
activities drug testing policy was a "reasonable means of furthering the School District's
important interest in preventing and deterring drug use among its schoolchildren."
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Outside the public school context, in Ferguson (2001) 532 U.S. 67, the Supreme Court struck
down an arrangement between a state hospital and police under which the urine of pregnant
patients--unknown to the patients and without their consent--was screened for drugs, with the
results forwarded to the police for possible prosecution. Absent consent or a warrant, the
searches were unconstitutional because the purpose of the screening was simply a general
interest in crime control, rather than some "special need" of the state sufficient to permit
suspicionless, warrantless searches.
E.
Warrantless DNA Testing
In 2004, the DNA Act of 1998 (Pen. Code, §§ 295 et seq.) was significantly expanded
following the passage of Proposition 69. Penal Code sections 296 and 296.1 now require the
collection of a buccal swab (inner cheek scraping) DNA sample, thumbprint, and palm
impressions for every adult arrested for, or charged with, a felony and any person, including
juveniles, convicted of, or found not guilty by reason of insanity for, any felony offense. Any
adult or juvenile required to register as a sex offender or arson offender based on either a
felony or misdemeanor conviction also must provide samples. (Pen. Code, § 296, subd.
(a)(3).) It is a felony for any person to intentionally provide a false DNA sample or tamper
with a sample for the purpose of a false profile. (Pen. Code, § 298.2.) Additional information
regarding DNA database collection can be found at http://ag.ca.gov/bfs/prop69.php.
DNA samples under these provisions may be collected without a warrant (King (2000) 82
Cal.App.4th 1363, 1370-1378; Travis (2006) 139 Cal.App.4th 1271; Johnson (2006) 139
Cal.App.4th 1135; Coffey (2005) 129 Cal.App.4th 809, 817; Adams (2004) 115 Cal.App.4th
243, 259; Kincade (9th Cir. 2004) 379 F.3d 813 (en banc); Calvin S. (2007) 150 Cal.App.4th
443, 449--valid for juveniles), and officers may employ reasonable force in obtaining samples
(Pen. Code, § 298.1, subd. (b)). The U.S. Supreme Court has validated the collection of DNA
buccal swabs from felony arrestees in King (2013) 133 S.Ct. 1958. (Accord, Haskell (9th Cir.
2012) 669 F.3d 1049.)
If an item containing DNA has been abandoned, testing the DNA--for identification purposes
only--does not require a warrant. (Gallego (2010) 190 Cal.App.4th 388.)
Example:
Police retrieved a cigarette butt that Gallego had discarded in a public place and
performed DNA testing that linked Gallego to the murder of his aunt. HELD: The
DNA testing was not a search under the Fourth Amendment because Gallego did not
have a reasonable expectation of privacy in the DNA testing of the abandoned
cigarette butt. (Gallego (2010) 190 Cal.App.4th 388.)
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This rule applies even if only the DNA was left behind.
Example:
Thomas, who was under surveillance for a series of residential burglaries, was stopped
for traffic violations. His eyes were bloodshot and watery, so field sobriety tests were
conducted and Thomas consented to a PAS breath test. Thomas passed all the tests
and was let go, but the police kept the PAS device for DNA testing. The DNA test
linked Thomas to several burglaries. Thomas claimed that warrantless testing for his
DNA was an unlawful search. HELD: The DNA testing was not a search because
Thomas had abandoned his privacy right in the saliva he left on the PAS device by
failing to wipe it off. The court considered the PAS device a publicly discarded item
and rejected Thomas' claim that the officers could not use "fraud and deceit" to obtain
a DNA sample. The court found that the DNA sample was lawfully obtained for use
in the burglary investigation as incidental to obtaining the breath sample needed for
investigating the suspected crime of driving under the influence. (Thomas (2011) 200
Cal.App.4th 338.)
Also, prison inmates have a right to bring a motion for DNA testing. (Pen. Code, §1405.)
California DOJ must maintain a DNA database for all cases involving the report of an
unidentified deceased person or a high-risk missing person. (Pen. Code, § 14250.)
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California Peace Officers Legal Sourcebook
SEARCH AND SEIZURE - PREMISES
3-i
TABLE OF CONTENTS
Page
I.
II.
III.
IV.
INTRODUCTION ............................................................................................................... 3.1
REASONABLE EXPECTATION OF PRIVACY ............................................................. 3.1
A. Definition ...................................................................................................................... 3.1
B. General Rule .................................................................................................................. 3.2
C. Specific Situations ......................................................................................................... 3.2a
1. A Home ................................................................................................................ 3.2a
2. A Driveway .......................................................................................................... 3.2b
3. The Front Yard ..................................................................................................... 3.2b
4. The Back Yard ..................................................................................................... 3.3
5.
Windows............................................................................................................... 3.4a
6. Fences and Walls .................................................................................................. 3.4b
7.
Views from Neighboring Premises ...................................................................... 3.5
8.
Other Structures on the Premises ......................................................................... 3.5
9. "Curtilage" vs. "Open Fields"............................................................................... 3.6
10. Surveillance .......................................................................................................... 3.7
11. Binoculars/Vision Aids ........................................................................................ 3.8
12. Overflights ............................................................................................................ 3.8
13. Videotaping .......................................................................................................... 3.8c
14. Thermal Imaging .................................................................................................. 3.8d
15. Closed Containers ................................................................................................ 3.8e
16. Outer Door Locks ................................................................................................. 3.8e
17. Businesses ............................................................................................................ 3.8e
18. Private Searches ................................................................................................... 3.8e
PLAIN VIEW ...................................................................................................................... 3.8f
A. Lawful Intrusion Requirement ...................................................................................... 3.8f
B. The "Nexus" Rule .......................................................................................................... 3.9
EXIGENCIES/EMERGENCIES ........................................................................................ 3.10
A. To Prevent Imminent Danger to Life ............................................................................ 3.10a
1.
"Protective Sweep" ............................................................................................... 3.10a
2.
Injured Victim/Animals or Ill/Missing Person Inside .......................................... 3.10c
a. "Emergency Aid" Doctrine ............................................................................ 3.12
b. "Community Caretaking" ............................................................................... 3.12b
3.
Suspected Child Abuse ........................................................................................ 3.12c
4.
Suspected Domestic Violence .............................................................................. 3.12c
5.
Re-Entries ............................................................................................................. 3.12d
B. To Prevent Serious Damage to Property ....................................................................... 3.13
C. To Prevent the Imminent Escape of Suspect ................................................................. 3.13
1.
To Make an Arrest................................................................................................ 3.13
2.
"Knock and Notice".............................................................................................. 3.14
D. To Prevent Destruction of Evidence ............................................................................. 3.14
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Page
V.
VI.
E. "Creating" an Exigency ................................................................................................. 3.15
F. Crime Scenes ................................................................................................................. 3.16
1.
Homicide Scenes .................................................................................................. 3.16
2. Clandestine Drug Labs ......................................................................................... 3.16b
3. Arson Scenes ........................................................................................................ 3.17
4. Other Scenarios .................................................................................................... 3.17
FORCIBLE ENTRY OF PREMISES/"KNOCK AND NOTICE" ..................................... 3.18
A. Purpose of the Requirements......................................................................................... 3.18
B. The Requirements Themselves ..................................................................................... 3.18
1. For Both Arrests and Searches ............................................................................. 3.18
2. For Arrests Only - Belief Suspect Is Inside.......................................................... 3.19
3.
For Searches Only - The Wait/Refusal Requirement ........................................... 3.19
C. Applicable Situations .................................................................................................... 3.20a
1.
Open Outer Doors ................................................................................................ 3.20a
2. Closed Inner Doors............................................................................................... 3.20a
3.
Other Structures on the Premises ......................................................................... 3.21
4.
Entry for Another Purpose ................................................................................... 3.21
D. Requirements Excused/Nonapplicable .......................................................................... 3.22
1. Consent Entry ....................................................................................................... 3.22
2.
Public Places/Businesses ...................................................................................... 3.22
3.
Exterior Gates and Fences .................................................................................... 3.22
4.
Unoccupied Premises ........................................................................................... 3.22
5.
Premises Occupied by Trespasser/Burglar ........................................................... 3.22a
6.
Exigent Circumstances/Emergency...................................................................... 3.22a
7.
Compliance Futile ................................................................................................ 3.24
8.
Ruse Entry ............................................................................................................ 3.24a
E. Substantial Compliance ................................................................................................. 3.24a
F. Effect of Noncompliance .............................................................................................. 3.24b
CONSENT .......................................................................................................................... 3.25
A. Preliminary Considerations ........................................................................................... 3.25
1.
Always Seek Consent ........................................................................................... 3.25
2.
Do Not Seek Consent Instead of a Warrant ......................................................... 3.26
3.
Indications of Consent - Express and Implied ..................................................... 3.26
B. Voluntariness of Consent .............................................................................................. 3.26a
1.
The Officer ........................................................................................................... 3.27
a. Force (Physical).............................................................................................. 3.27
b. Coercion ......................................................................................................... 3.28
c. Demeanor ....................................................................................................... 3.29
d. Deceit/Ruse .................................................................................................... 3.30
e. Miranda Warnings .......................................................................................... 3.31
f. Advisement of Right to Refuse ...................................................................... 3.32
g. Written Waiver ............................................................................................... 3.32
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Page
2.
VII.
VIII.
The "Consenter" ................................................................................................... 3.32
a. Condition of the Consenter ............................................................................ 3.32
b. Conduct of the Consenter ............................................................................... 3.32
C. Authority to Consent ..................................................................................................... 3.33
1. Actual Authority Through Mutual Use and Joint Access .................................... 3.34
a. Joint Occupants of Premises .......................................................................... 3.34
b. Landlord-Tenant ............................................................................................. 3.34b
c. Motel Owner-Boarder .................................................................................... 3.34b
d. Employer-Employee....................................................................................... 3.35
e. Real Estate Agents ......................................................................................... 3.35
f. Military Bases ................................................................................................ 3.35
2.
Third Party's Presence/Objection ......................................................................... 3.35
3. Actual Authority Through Temporary Possession of Personal Property ............ 3.36a
4. Apparent Authority .............................................................................................. 3.36a
D. Scope of Consent ........................................................................................................... 3.36b
E. Withdrawal of Consent.................................................................................................. 3.37
F. Consent After Formal Charges Filed ............................................................................ 3.37
SEARCHES INCIDENT TO ARREST .............................................................................. 3.37
A. Contemporaneous Requirement .................................................................................... 3.38
B. Searches of Areas Beyond Immediate Reach................................................................ 3.38
ABANDONMENT.............................................................................................................. 3.39
A. Premises ........................................................................................................................ 3.39
B. Garbage ........................................................................................................................ 3.39
C. Other Items .................................................................................................................... 3.40
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California Peace Officers Legal Sourcebook
SEARCH AND SEIZURE - PREMISES
I.
3.1
INTRODUCTION
This chapter discusses warrantless searches and seizures in and around the home. Included
will be the topics of "privacy" and "plain view," as well as the three major exceptions to the
warrant requirement: emergency searches, consent searches, and searches incident to an
arrest.
Note that some important general considerations, which apply to this chapter but are not being
repeated here, may be found in the "Introduction" section of Chapter 2. All cases concerning
"standing" with regard to permanent or temporary residences are discussed in Chapter 2-I-B2.
II.
REASONABLE EXPECTATION OF PRIVACY
A.
Definition
Both the United States and California Constitutions guarantee everyone the right to be free
from unreasonable governmental intrusion. This right is personal to every citizen. It can
exist almost anytime and any place as long as:
-
the individual has indicated--typically by taking some action to preserve privacy--that
he or she personally (subjectively) expects privacy in the object of the search; and
-
the individual's expectation is one that society is prepared to recognize as legitimate,
i.e., objectively reasonable. (Bond (2000) 529 U.S. 334, 338; Olson (1990) 495 U.S.
91, 95-96; Greenwood (1988) 486 U.S. 35, 39; Jacobsen (1984) 466 U.S. 109; Nishi
(2012) 207 Cal.App.4th 954.)
"The correct inquiry is whether the government's intrusion infringes upon the personal and
societal values protected by the Fourth Amendment." (Oliver (1984) 466 U.S. 170, 182-183;
Carter (1998) 525 U.S. 83, 88; Sacramento County (1996) 51 Cal.App.4th 1468, 1478.) The
courts will look to whether a search was accomplished by an "unlicensed physical intrusion"
on the property. Although a residence is available in many respects to public access, the
"implied license" to enter is not an invitation for the government to engage in an invasive
forensic investigation on the property. (Jardines (2013) 133 S.Ct. 1409.)
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3.2
B.
SEARCH AND SEIZURE - PREMISES
General Rule
It is illegal for a peace officer to physically enter into an area where a person has a
"reasonable expectation of privacy" in order to conduct a search or for the purpose of seizing
something unless:
-
you have a warrant; or
-
an emergency or exigent circumstances exist; or
-
you have obtained a valid consent. (Stoner (1964) 376 U.S. 483, 486-490; Jacobs
(1987) 43 Cal.3d 472, 477-478; Wilson (1997) 59 Cal.App.4th 1053, 1059; Conway
(1996) 45 Cal.App.4th 163, 172.)
Of course, if you are already lawfully inside a home and make an arrest there, you may then
be able to conduct a search into protected areas, such as a cupboard or drawer (within the
limitations of Chimel (1969) 395 U.S. 752) incident to that arrest. But this exception has
nothing to do with entering.
Remember, too, that an entry into a protected area without a warrant, exigent circumstances,
or consent will be invalid:
-
regardless of how much probable cause you have (Payton (1980) 445 U.S. 573, 588,
fn. 26); and
-
despite the fact that you see incriminating evidence inside the protected area from a
place outside where you have the right to be. (Horton (1990) 496 U.S. 128.)
Example:
Lawfully observing growing marijuana in a private, fenced backyard does not give
you the right to go seize it without a warrant, exigent circumstances, or consent.
(Arroyo (1981) 120 Cal.App.3d Supp. 27; Freeman (1990) 219 Cal.App.3d 894.)
Also keep in mind the concept of "curtilage." The curtilage of a home enjoys the same
protection as the home itself. (Jardines (2013) 133 S.Ct. 1409, 1414.) Curtilage is the real
property "so intimately tied to the home" that it is placed within "the home's 'umbrella' of
Fourth Amendment protection." (Dunn (1987) 480 U.S. 294, 301.) See discussion of
"curtilage" versus "open fields," below.
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C.
3.2a
Specific Situations
The following is a discussion of specific situations and how they relate to a person's
expectation of privacy.
Note:
1.
Remember that all these examples illustrate where you may go to investigate
(sometimes involving an "investigative trespass"), not what you may do in an
arrest situation where the area must be secured to prevent an escape.
A Home
Everyone, of course, can reasonably expect privacy inside his or her own home--at least to the
extent that no officer will enter unless the officer has a warrant, exigent circumstances exist,
consent has been obtained, or the person is on parole, postrelease community supervision,
searchable mandatory supervision, or searchable probation. (Stoner (1964) 376 U.S. 483,
486-490; Jacobs (1987) 43 Cal.3d 472, 477-478; Wilson (1997) 59 Cal.App.4th 1053, 1058,
1059; Reyes (1998) 19 Cal.4th 743; Pen. Code, §§ 3067, subd. (a), 3465.)
Almost anything, anywhere, can qualify as a "home," such as a boat, van, motel room, tent,
etc.
Example:
Boot Hughston arrived at the Mendocino County Fairgrounds World Music Festival in
a rented Hummer and pitched a 10' x 30' tent-like structure that enclosed the vehicle
and provided additional living space. The structure was made of an aluminum frame
and tarps that draped over the frame and the Hummer. After an undercover BNE
agent observed a number of drug sales by Hughston on the fairgrounds, Hughston was
detained, searched, and arrested. Officers then located the rented Hummer and
entered the tarp structure to conduct a full search of the vehicle. HELD: The tarp
structure was equivalent to a large camping tent, and the officers' warrantless entry
into the "structure" was unlawful. (Hughston (2008) 168 Cal.App.4th 1062.)
Example:
Officers, who had probable cause but no warrant to arrest Oaxaca, saw him standing
in his open garage, which was attached to his house. Nevertheless, it was illegal for
the officers to walk into the garage through its open door without a warrant, consent,
or exigent circumstances. "Simply put, a person's garage is as much a part of his
castle as the rest of his home." (Oaxaca (9th Cir. 2000) 233 F.3d 1154, 1157.)
On the other hand, a person can hardly claim she has a reasonable expectation of privacy in
areas around her home where the general public (mail carriers, salespersons, visitors, etc.)
would reasonably be permitted to go. For example, the garage of a condominium apartment,
which is available to all tenants and readily accessible by members of the general public,
would not have Fourth Amendment protection. (Galan (1985) 163 Cal.App.3d 786, 792793.) Any expectation of privacy must be legitimate. (Nishi (2012) 207 Cal.App.4th 954.)
Example:
Suspect had no reasonable expectation of privacy as to the interior hallway outside his
apartment in his high-rise, high-security apartment building, even assuming that the
officers had trespassed to get there--which, here, they had not. (Nohara (9th Cir.
1993) 3 F.3d 1239, 1241-1242.)
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Example:
Chavez did not have a reasonable expectation of privacy in the area in front of the side
gate to his back yard. The side gate was located on a paved walkway only a short distance
from the front door, and it "was not a substantial or unreasonable departure from the
normal access to the house." Also, there were no barriers, such as trellises or planters,
blocking public access to the gate. Chavez could not have had an expectation of privacy
in an area impliedly open to the public. (Chavez (2008) 161 Cal.App.4th 1493, 1501.)
Example:
Defendant, who was camping on a public preserve without a permit, had been evicted
recently from at least four other campsites in the preserve. After he was arrested for
threatening a public official via emails he sent to the Department of Defense, his tent and
possessions were searched. HELD: The search was lawful. "Defendant was not in a
position to legitimately consider the campsite--or the belongings kept there--as a place
society recognized as private to him." (Nishi (2012) 207 Cal.App.4th 954, 961; compare
Sandoval (9th Cir. 2000) 200 F.3d 659, 660-661--unlawful entry of defendant's makeshift
tent on BLM land near marijuana gardens where it was not shown that defendant knew
camping was prohibited.)
2.
A Driveway
Typically, it is proper for you to access a person's driveway or to view areas and objects from that
location (Bradley (1969) 1 Cal.3d 80), and the fact the driveway is within the "curtilage" is not,
by itself, determinative (Zichwic (2001) 94 Cal.App.4th 944, 953-954).
Example:
No violation for officers to observe footprints in front yard and on front porch and
driveway because they were in plain view of anyone approaching the front door.
(Edelbacher (1989) 47 Cal.3d 983, 1015.) Same for officers accessing a car parked in a
private driveway (Zichwic (2001) 94 Cal.App.4th 944, 954) and for observing, from a
driveway, marijuana plants 30-40 feet away (Johnson (1980) 105 Cal.App.3d 884).
Example:
It was lawful to enter private driveway through two unlocked gates to check out why a
man was stripping copper wire from an air conditioning unit. (Lujano (2014) 229
Cal.App.4th 175.)
It is possible, of course, for a driveway, or part of it, to receive Fourth Amendment protection
under certain circumstances.
Example:
Where the owner, a practicing nudist, took steps to protect his privacy by posting "no
trespassing" signs and growing thick shrubbery, and where the officer took an access
route that would not normally be used to make clandestine observations on the driveway,
the observations were illegal. (Depew (9th Cir. 1993) 8 F.3d 1424.)
A residential carport structure, which is not a common structure used by multiple dwellings, will
probably be protected. (See Perea-Ray (9th Cir. 2012) 680 F.3d 1179.)
3.
The Front Yard
A person normally has no reasonable expectation of privacy in the areas around the front of his or
her home "where members of the public having business with the occupants" would naturally go
or see. Indeed, the test for any area immediately surrounding a residence is whether it is an area
where the public has been implicitly invited. (Thompson (1990) 221 Cal.App.3d 923; Chavez
(2008) 161 Cal.App.4th 1493, 1501.)
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3.3
Example:
An officer missed a turnoff and ended up driving on a circular "loop" road that
provided access to seven houses. When he turned into a driveway to ask Gray (who
was outside) for directions, he noticed that Gray was carrying a trash bag filled with
marijuana protruding from the top of the bag. The officer arrested Gray and seized the
marijuana. His observations were legal. Even though the road had some "no
trespassing" signs, the officer was not there searching for contraband in an area where
the desire for privacy was obvious. The "loop" was open and accessible and used by
the residents. Turning around in the driveway was an act that could have been done
by any one of the residents or their guests who regularly used the roadway, and Gray
could have been seen from the roadway as well as his own driveway. (Gray (1985)
164 Cal.App.3d 445.)
Example:
An officer went through an unlocked gate in a chain-link fence to talk to the
occupant/suspect who was standing in the front yard about 75 feet from the gate. Up
close, the officer could see the suspect was under the influence of an opiate. The court
held that the suspect had no reasonable expectation of privacy in his front yard,
despite the fence, because the fence was more for "discouraging dogs, children,
handbill deliverymen and others from walking across the front lawn and flower beds,"
than it was for "excluding the public." However, the result would probably have been
different if there had been "a locked gate, a high solid fence blocking the front yard
from view, a written notice to keep out or 'beware of dog,' or perhaps a doorbell at the
front gate, . . . warning that the visitor was unwelcome." (Mendoza (1981) 122
Cal.App.3d Supp. 12.)
Example:
Overflying Hammett's makeshift residence on rural property in Hawaii, police saw
what they suspected to be marijuana plants growing inside the house. They landed
nearby, walked to the front door, and announced their presence but got no response.
They then walked around the outside of the residence to see if anyone was there, and
were able to see, through a fairly large crack in the house, "from a distance of
approximately five to six feet without making any contortions," marijuana plants
inside the house. HELD: All the police actions were legal. (Hammett (9th Cir. 2001)
236 F.3d 1054, 1059-1061.)
4.
The Back Yard
Normally, a person has a higher reasonable expectation of privacy in his back yard than his
front yard. This is because, by common sense and custom, members of the public are not
normally invited into or expected to enter the back yard of an average residence, depending,
of course, on the nature of the surrounding property, whether or how it is fenced, etc.
Therefore, you may not normally enter the back yard to search or seize without a warrant,
consent or exigent circumstances.
Example:
Officer went to a house to investigate a malicious mischief matter. Seeing no one
inside the house, he walked into the fenced back yard through a closed, posted but
unlocked gate and found marijuana. The warrantless entry was illegal. (Winters
(1983) 149 Cal.App.3d 705.)
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SEARCH AND SEIZURE - PREMISES
Example:
Officers responded to an anonymous tip concerning narcotics activity at a certain
residence. Arriving there about 7:30 p.m., they drove down an alley and observed a
Hispanic male standing in the rear yard of the residence. One officer recognized him,
from an earlier arrest, and knew he did not live there. Upon seeing the officers, the
man stepped back, away from them. The officers got out of their car and "hopped
over" a three-and-a-half-foot chain-link fence, detained the man, and ultimately
discovered contraband, legally, in a nearby chicken coop. HELD: Warrantless entry
into the fenced yard was legal. (Thompson (1990) 221 Cal.App.3d 923.)
Example:
Following a tip from an informant that an armed and dangerous parolee at large was
staying with defendant, officers went to the residence to serve a parole arrest warrant.
One officer opened a gate off the driveway, walked through the back yard, and
knocked on the rear door. Everyone except the parolee ran toward the front door. The
police ordered everyone out, and defendant eventually consented to a search for the
parolee. Contraband was observed in plain view during the search. HELD: The
technical trespass into the back yard was not controlling. The exigent circumstances,
which included the need to apprehend an absconding armed parolee hiding in a home
in a residential neighborhood, "strongly outweighed the marginal relevant impact of
the trespass." (Manderscheid (2002) 99 Cal.App.4th 355.)
Example:
Officers were trying to locate a resident regarding a domestic disturbance earlier that
day. They believed he was home (warm car hood and light on in garage), but he was
not responding to their knocking and requests. One officer went to the side yard gate,
raised himself three inches on his tip toes, and shone his flashlight into the back yard.
He saw a cocked revolver and could not tell if the gun was loaded. HELD: The
officer lawfully entered the back yard to seize the revolver to protect himself and the
seven-year-old child who lived in the residence. (Chavez (2008) 161 Cal.App.4th
1493, 1503.)
If the yard or other area is protected by a reasonable expectation of privacy, your warrantless
entry into it (without exigent circumstances or consent) will be illegal even if you observe the
crime-related evidence while looking from a lawful position outside the back yard. (Lovelace
(1981) 116 Cal.App.3d 541.) On the other hand, if the rear yard of a residence can be viewed
from, for example, an adjacent house that is nearby, then it does not violate the yard owner's
privacy to observe objects in his yard. (Sirhan (1972) 7 Cal.3d 710, 742-743.)
Example:
Officers did not violate defendant's privacy by observing marijuana plants growing in
his fenced back yard since they were plainly visible from the adjacent, higher
property. The fact that the officers may have been trespassing on the adjacent
property (i.e., were there without permission) was irrelevant. (Claeys (2002) 97
Cal.App.4th 55; see Dillon (1972) 7 Cal.3d 305, 311 [observation from a neighbor's
second-floor window].)
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Example:
3.4a
An officer got reliable information that a suspect was growing marijuana in the back
yard of her apartment complex residence. He went there, but no one was home, so he
walked along the common carport area to the back patio. The patio was enclosed but
had no gate. Instead, a tree was growing where the gate should have been. The
officer looked around the tree, saw a marijuana plant, and then entered the patio to
seize it. The court held that his observation of the plant from the common carport area
was proper, but that the warrantless entry of the yard was not. (Arroyo (1981) 120
Cal.App.3d Supp. 27.)
Note:
Since a person's reasonable expectation of privacy is less in his back yard than
inside his house, it would take less urgent exigent circumstances to justify your
warrantless entry into his yard than into his house. (Westmoreland (1976) 58
Cal.App.3d 32.)
Apartment dwellers do not have a reasonable expectation of privacy in the shared back yard
of a multi-unit complex. (Shaw (2002) 97 Cal.App.4th 833.)
Example:
After receiving complaints of narcotics activity in a four-unit apartment building,
officers observed defendant twice walk into the back yard, reach down near the fence,
and then return to his apartment. One officer entered the back yard and lifted up a 4x4
piece of wood covering a hole in which a bag of rock cocaine had been stashed. The
court upheld the search and found that defendant did not have a reasonable
expectation of privacy in the hole in a yard accessible to all the occupants in the
complex. (Shaw (2002) 97 Cal.App.4th 833.)
Also, every entry into a back yard is not, necessarily, illegal.
Example:
5.
An electrical meter installed on a utility pole in the defendant's back yard by P.G. & E.
at the request of police to monitor the theft of electricity did not violate the Fourth
Amendment because it revealed nothing about "the intimate details of activities within
the house" such as "what electrically powered devices are inside the house or what
activities the power is supporting." (Stanley (1999) 72 Cal.App.4th 1547, 1553-1554.)
Windows
If you look through a window from a place where the public (which includes police) has
implicitly been invited, by means of a pathway, walkway, etc., then your observations will be
legal. The fact you may have committed a "technical trespass" to stand there is irrelevant.
However, even if you are standing in a "public" place, your observations will probably be
ruled illegal if you have to peek through a hole or small area, for example, a small gap in a
blind. Your observations would be lawful if justified by an exigency. (Gemmill (2008) 162
Cal.App.4th 958.)
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3.4b
SEARCH AND SEIZURE - PREMISES
Absent exigent circumstances, if you enter a back yard, side yard, or other area where the
public has not been implicitly invited, your observations will constitute an illegal invasion of
privacy, even if the window, for example, is entirely uncovered. (Camacho (2000) 23 Cal.4th
824; Lorenzana (1973) 9 Cal.3d 626; see Gemmill (2008) 162 Cal.App.4th 958 regarding
"emergency aid" exception.)
Example:
It was illegal for officers to look through a side yard window, located about 20 feet
from the front of the house and 40 feet from the sidewalk, even though there was no
window covering and even though there was no "barrier" to the public, such as a fence
or shrubbery. There was no implicit "invitation" to the public to go there, such as a
pathway or entrance to the residence, and passers-by on the street or sidewalk could
not see into the room. The officers, who were responding to a "loud party" report at
11 p.m., had not knocked on the front door first and they were not faced with an
exigency or evidence of criminal conduct before they looked through the window.
(Camacho (2000) 23 Cal.4th 824.)
Example:
It was illegal for police to make observations through a side yard window that was
mostly covered, when the officer had to crouch down and peek through a two-inch
opening in the window shade. (Lorenzana (1973) 9 Cal.3d 626.)
Example:
From a planter area 18 inches from a window, an officer peeked through a narrow gap
in a defective portion of a closed Venetian blind to investigate suspicious after-hours
activity in a business establishment and saw criminal activity. The evidence was
suppressed. (Jacobs (1973) 36 Cal.App.3d 489.)
If, however, you enter a non-public area to make observations into a residence based on an
exigency justifying the intrusion, the search is legal. (Gemmill (2008) 162 Cal.App.4th 958.)
Example:
6.
Deputies responded to a report of a two-year-old child standing in the road in traffic.
The deputies determined through neighbors where the child lived. They went to the
home and knocked hard on the door; there were no cars in front and no one answered.
After taking the child to Child Protective Services, one deputy returned to the house
and again pounded on the front door, yelling "Sheriff's Office!" He then walked
around the perimeter of the property and looked into the house through a five- to sixinch gap in the blinds on a back window. He saw a nonresponsive adult male and an
infant playing with a plastic bag near its face, and he immediately entered the
residence. HELD: The observations through the rear window were lawful. The
unattended child outside the house and the lack of information as to whether someone
in need of aid was inside justified waking around the house and looking through the
window. (Gemmill (2008) 162 Cal.App.4th 958, 967.)
Fences and Walls
The general rule relating to the expectation of privacy created by the erection of walls and fences is
that if, while standing in a lawful place, you can see over or through the fence or wall (1) without
extraordinary effort (e.g., without using a stepladder or standing on a car or cinder block), or (2)
without getting very close and "peeking," the viewing will normally not be considered a "search;" i.e,
the person does not have a reasonable expectation of privacy in the area viewed.
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3.5
Example:
Officer was trying to locate Chavez, whom he believed to be home, and walked a few
feet from the front door to the side yard gate to call into the residence. He raised
himself on his tip toes to look over the fence and saw a cocked revolver in the side
yard. The observation was lawful (i.e., it was not a search). (Chavez (2008) 161
Cal.App.4th 1493.)
Example:
An officer was told by an informant that Lovelace was growing marijuana. The
officer went to the Lovelace residence and, while standing in the alley, looked through
a small knothole in a six-foot-high wooden fence and saw marijuana growing. The
officer then got a warrant and seized the marijuana (and other drugs in plain view).
The evidence was suppressed because looking through the knothole was a warrantless
"search." (Lovelace (1981) 116 Cal.App.3d 541.)
Climbing over a fence or wall may or may not be a "trespass" depending on the nature of the
area behind the wall or fence ("curtilage" vs. "open fields" or accessible to public).
Example:
7.
In the course of a narcotics investigation, officers climbed over the wrought-iron fence
surrounding a large, gated apartment complex and proceeded to a carport where they
observed contraband. HELD: There was no trespass, and even if there was, it was "a
simple trespass [which] would not invalidate their subsequent observations." (Arango
(1993) 12 Cal.App.4th 450, 455.)
Views from Neighboring Premises
You may view the suspect's home, yard, or property from a neighbor's home or property if
invited to do so, at least in situations where members of the public could also see the
suspicious object.
Example:
8.
Dillon's neighbor called police and said that Dillon was growing marijuana in his back
yard, which had a fence around it. An officer responded and viewed the marijuana
from the neighbor's second-story window (40 feet away). The court ruled that this
viewing was proper, but emphasized that "[t]he view of the back yard was vulnerable
to observation by any of the petitioner's neighbors, in essence, open to public view."
(Dillon (1972) 7 Cal.3d 305.)
Other Structures on the Premises
The expectation of privacy associated with other structures on the premises is somewhat less
than the privacy associated with a house. (Medina (1972) 7 Cal.3d 30.)
The difference, however, is not significant, and you should, whenever possible, follow all of
the same rules as you would with respect to the house itself. (Bruce (1975) 49 Cal.App.3d
580.)
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SEARCH AND SEIZURE - PREMISES
"Curtilage" vs. "Open Fields"
What falls within the curtilage is determined by (1) the proximity of the area to the home, (2)
whether the area is included within an enclosure, (3) how the area is used, and (4) the steps
taken by the resident to protect the area from observation by the public. (Dunn (1987) 480
U.S. 294, 301.) A front porch is, necessarily, within the curtilage of a home and protected
under the Fourth Amendment. (Jardines (2013) 133 S.Ct. 1409.)
Areas beyond the curtilage are "open fields." "Open fields" do not have to be either "open" or
real "fields" to qualify. (Dunn (1987) 480 U.S. 294, 304; Van Damme (9th Cir. 1995) 48
F.3d 461, 464.) "Open fields" are areas of land so open to public view that the owner or
possessor is deemed to have "implicitly invited" the police to observe his contraband.
Because of the lack of a reasonable expectation of privacy in such areas, the Fourth
Amendment has no applicability to them. Therefore, your warrantless entry into "open fields"
is perfectly legal, as are any observations made from them. (Lorenzana (1973) 9 Cal.3d 626;
Freeman (1990) 219 Cal.App.3d 894.)
Example:
Police, acting on an anonymous tip, went out to the suspect's property, walked past his
house, went around a locked gate posted with "no trespassing" signs, and walked over
a mile onto his private property to find a secluded parcel of marijuana that could not
be seen from anywhere else. The U.S. Supreme Court upheld all these actions as
involving only "open fields." The fact that the officers committed a technical trespass
also made no difference. (Oliver (1984) 466 U.S. 170.)
Example:
Officers who were following up on aerial photographs crossed over the suspect's
perimeter fence and over several similarly constructed interior fences before coming
to the locked front gates of a barn. They shone their lights into the barn and observed
a drug lab. The U.S. Supreme Court upheld all the observations, emphasizing that the
officers never physically entered the curtilage and that observations from "open fields"
into the curtilage or other protected area are permissible anyway. (Dunn (1987) 480
U.S. 294.)
Example:
Officer trespassed a few hundred feet onto private rural property to a point he could
see marijuana growing inside Channing's curtilage. HELD: Because the observations
were made from "open fields," they were legal. The trespass was irrelevant; the
situation was no different than making the observations from a public place.
(Channing (2000) 81 Cal.App.4th 985, 993.)
Example:
It was legal for officers to trespass on defendant's land late at night, walk through his
forest, climb over his wire fence, and look through large openings in a 12' high
wooden fence into greenhouses through their open doors. (Van Damme (9th Cir.
1995) 48 F.3d 461, 464.)
Example:
Acting on a tip, officers walked into remote, heavily overgrown land and observed
incriminating activity in and about a trailer located in a small clearing, using their
observations as a basis to obtain a warrant. Their warrantless observations made from
"open fields" were valid. (Freeman (1990) 219 Cal.App.3d 94.)
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Example:
Officers responding to a tip went around a gate, passed a "no trespassing" sign,
crossed through the curtilage and knocked on the door of the residence, then walked
up to the unfenced side of a "shop," 75 feet away, where they smelled marijuana and
heard the buzz of lights commonly used for indoor cultivation. HELD: These
observations were lawful and could properly support a search warrant because the
shop itself, where the incriminating observations were made, was not within the
curtilage and was thus in "open fields." (Traynor (9th Cir. 1993) 990 F.2d 1153,
1158; Brady (9th Cir. 1993) 993 F.2d 177, 178-179; but see Depew (9th Cir. 1993) 8
F.3d 1424.)
Example:
A sheriff's sergeant walked along the driveway to the Lieng residence at 4:30 in the
morning and noticed the smell of fresh marijuana in the air and the sound of electric
devises, such as fans, operating inside a metal building located 20 feet from the
driveway. The Lieng residence was the last on a common driveway to numerous
residences, and there were no gates obstructing the driveway. Staying on the
driveway, the sergeant could see lights coming from the garage attached to the Lieng
residence, he smelled the strong odor of marijuana coming from the garage, and he
heard noise consistent with a marijuana grow operation. The sergeant went onto the
property a second time ten days later at 12:30 a.m, and the odor of marijuana was even
stronger. He, again, stayed on the driveway. HELD: Applying the four Dunn factors,
the sergeant's observations and surveillance on both nights from the driveway
occurred outside the curtilage of the defendants' residence. (Lieng (2010) 190
Cal.App.4th 1213, 1226.)
Example:
Agents positioning themselves outside the uncovered window of defendant's travel
trailer parked on a rural ranch observed evidence of an operational methamphetamine
lab inside the trailer. Because the travel trailer was not being used as an occupied
dwelling, the clearing surrounding the trailer was not "curtilage." The "curtilage
doctrine applies to the area immediately surrounding a home, not to an empty
structure used occasionally as sleeping quarters." (Barajas-Avalos (9th Cir. 2004) 359
F.3d 1204, 1216.)
Example:
A citizen told officers that a cache of explosives and contraband weapons was located
in a bunker in an uninhabited desert area. The officers went onto Scheib's property
without a warrant and seized the evidence. The court ruled the evidence admissible
because the evidence was in "open fields." In addition, the presence of explosives and
dangerous weapons created an exigency requiring "immediate neutralization."
(Scheib (1979) 98 Cal.App.3d 820.)
10.
Surveillance
It is not a "search" to conduct surveillance of private premises or to follow people who leave
the premises, as long as the observations are made from a place you have a right to be. (Dunn
(1987) 480 U.S. 294; Ciraolo (1986) 476 U.S. 207; Freeman (1990) 219 Cal.App.3d 894.)
(For a discussion of electronic tracking devices, aka "beepers," see Ch. 5-X, "Electronic
Surveillance/Beepers.")
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11.
SEARCH AND SEIZURE - PREMISES
Binoculars/Vision Aids
Binoculars may be used to look onto premises or into a building if what is being viewed could
be seen with the naked eye from a lawful position (such as the driveway). In other words,
you may properly use binoculars to get a "better look."
Example:
Arno was selling pornographic films. An officer stationed himself on a hill 200-300
yards from the 8th floor window where Arno was "working." Using binoculars, the
officer could see through the window and viewed crime-related evidence. This fact
was placed in an affidavit for a search warrant. The evidence was suppressed because
the officer could not have seen the evidence with his naked eye and because there was
no public or semi-public vantage point from which the public could have seen the
contraband with the naked eye. (Arno (1979) 90 Cal.App.3d 505.)
Example:
With his naked eye, from an apartment he was lawfully in, an officer could see that
suspects in a large ($150,000) jewelry robbery were sitting around a table using a
scale to weigh objects with a "gold glint." Using binoculars, he could determine the
exact nature of the items being weighed. These observations were proper. (Cooper
(1981) 118 Cal.App.3d 499.)
Similarly, the use of night vision goggles to amplify ambient light to see something that is
already exposed to public view is not a Fourth Amendment search. This type of technology,
which is used by the military, police agencies, and the border patrol and is available to the
general public, is no more intrusive that the use of flashlights or binoculars. It is
distinguishable from the use of thermal imaging devices prohibited in Kyllo (2001) 533 U.S.
27, which penetrate walls or detect something that would not otherwise be observable. (Lieng
(2010) 190 Cal.App.4th 1213, 1228.)
12.
Overflights
Federal law is clear that persons on the ground have no privacy from warrantless aerial
observations made from aircraft flying in a physically nonintrusive manner in publicly
navigable airspace, typically 1,000 feet or more above the ground. (Ciraolo (1986) 476 U.S.
207.) Aerial observations are legal regardless of whether the flight (1) is part of a random,
routine surveillance program or (2) is carried out to look at specific property in response to a
tip. Likewise, it makes no difference where the marijuana is growing. From a lawful altitude,
you may look not only into "open fields," but also into the curtilage of the residence, i.e., the
yard or private area immediately surrounding a home. (Dunn (1987) 480 U.S. 294.)
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Although the observations in Ciraolo were made with the naked eye, the United States
Supreme Court ruled in a companion case (Dow Chemical (1986) 476 U.S. 227) that it is
legal to use aerial photography, including a camera which provides moderate enhancement.
(See also Van Damme (9th Cir. 1995) 48 F.3d 461, 463--use of 35 mm camera with a 600
mm lens upheld.) In both Dow and Ciraolo, however, the court warned that its opinion might
well be different if the police used sophisticated "high-tech" equipment, not generally
available to the public, which would reveal "intimate associations" below, i.e., activities not
otherwise visible.
The court also warned that overflights which are too "physically intrusive" (i.e., too low, loud,
frequent, prolonged, etc.) could make aerial observations illegal. Concerning elevation, this
means you should conform to FAA rules and stay a minimum of 1,000 feet above ground
level in "congested" areas and 500 feet in other, sparsely populated areas when flying a fixedwing aircraft. Although federal law permits helicopters to legally fly as low as 400 feet
(Riley (1989) 488 U.S. 445), California law is less clear on this point. (See Romo (1988) 198
Cal.App.3d 581 and cases cited therein; and McKim (1989) 214 Cal.App.3d 766; see also
Van Damme (9th Cir. 1995) 48 F.3d 461, 463-464.)
The California Supreme Court has also approved random or routine overflights (i.e., the
"CAMP" program) where the primary purpose is to inspect "open fields." (Mayoff (1986) 42
Cal.3d 1302.) However, in Cook (1985) 41 Cal.3d 373, the California Supreme Court struck
down aerial observations that were purposely made into a fenced, residential yard or
"curtilage," even though they were made with the naked eye and from a lawful elevation.
Cook may no longer be valid, however, since both federal and state courts have gotten away
from looking at an officer's subjective thinking--i.e., the reason he was making an overflight-and instead focus only on the objective legality of the search or seizure. In any event, the
results of any aerial observations will always be admissible in court as long as there was no
violation of federal law.
In light of these (and other) cases, the Department of Justice advises that:
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aerial observations of open fields, rural, noncurtilage, and/or public lands are legal in
California (Mayoff (1986) 42 Cal.3d 1302; Eckstrom (1986) 187 Cal.App.3d 323;
Messervy (1985) 175 Cal.App.3d 243; Van Damme (9th Cir. 1995) 48 F.3d 461);
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flights conducted for purposes other than the detection of marijuana (e.g., traffic
control, search and rescue, attempts to find or follow a fleeing felon) remain legal
(Spielman (1980) 102 Cal.App.3d 342);
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random or routine overflights, made for the purpose of detecting marijuana generally
and not in response to a tip regarding a specific person or parcel, may continue
(Mayoff (1986) 42 Cal.3d 1302; Stanislawski (1986) 180 Cal.App.3d 748);
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warrantless overflights undertaken specifically for the purpose of looking into an
enclosed residential yard which is not open to ground-level view, for suspected
evidence of a crime within the yard, may be illegal under this state's Constitution
(Cook (1985) 41 Cal.3d 373), but the evidence would always be admissible, thanks to
Proposition 8, because there would be no violation of federal law;
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any aerial photograph should serve only to corroborate what a qualified officer has
already tentatively identified with his unaided eye;
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any aerial photographs are taken with a lens approximating what the naked eye sees
(i.e., approximately 120mm), although use of a telephoto lens on a 35mm camera,
providing magnification of three to four times will undoubtedly pass constitutional
muster (Mayoff (1986) 42 Cal.3d 1302);
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any relevant aerial photographs are attached to the affidavit for a search warrant, and
the warrant contains language showing that the photographs merely corroborated
naked-eye probable cause (e.g., "The photographs attached to this affidavit show what
I, by naked eye, observed to be marijuana.");
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the aerial observations are conducted from an elevation of at least 500 feet above the
ground in rural areas and 1,000 feet in congested areas.
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13.
3.8c
Videotaping
Videotaping someone's activities is a form of surveillance and will be subject to the
traditional Fourth Amendment analysis, that is, whether it constitutes an invasion of the
suspect's reasonable expectation of privacy. Thus there can be civil, and possibly even
criminal, ramifications. (Sacramento County (1996) 51 Cal.App.4th 1468, 1477-1478; Civ.
Code, § 1708.8; Lab. Code, § 435.)
Furthermore, because a video recorder is a "recording device," the Privacy Act (Pen. Code, §
630 et seq.) may have to be considered, at least if the video is used to record a "private
communication" involving an audio component. (See Drennan (2000) 84 Cal.App.4th 1349,
and Ch. 5-IX-D.)
Example:
The owner of a condominium permitted DEA agents to install audio and video
equipment inside his residence, which the owner's brother-in-law was planning to use
for a few days to manufacture some methamphetamine. The recordings constituted a
violation of the defendant's privacy. "Clandestine observations into a private
residence from a vantage point inaccessible to the public or an uninvited guest is a
search which, if conducted without a warrant, is the type of activity the Fourth
Amendment proscribes." (Henderson (1990) 220 Cal.App.3d 1632.)
Example:
Undercover agents invited defendants to their motel room, which had been rented by
the police and had a secret video camera, for a narcotics transaction. HELD: Taping
the defendants' activities in the room, after the agents had left, violated their privacy,
in part because of the severe nature of the intrusion. (Nerber (9th Cir. 2000) 222 F.3d
597.)
However, the Fourth Amendment does not protect those who wish to hide in plain sight.
(Gonzalez (9th Cir. 2003) 328 F.3d 543, 545.)
Example:
Belgium Customs officials learned that a large quantity of the illegal drug "Ecstasy"
was being shipped via Federal Express to a Kaiser Medical Center in California. The
DEA arranged a controlled delivery and installed a covert video camera in the hospital
mailroom. Defendant and another hospital employee were videoed retrieving the
package. HELD: Defendant did not have an expectation of privacy in the public
mailroom of a community hospital. (Gonzalez (9th Cir. 2003) 328 F.3d 543, 548
["Gonzalez would have to adopt a theory of the Fourth Amendment akin to J.K.
Rowling's Invisibility Cloak, to create at will a shield impenetrable to law
enforcement view even in the most public places."].)
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14.
SEARCH AND SEIZURE - PREMISES
Thermal Imaging
A thermal imager is a device that from outside a building can detect infrared radiation on a
structure's surfaces and then produce images based on their relative warmth. This device is
often used to discover or confirm that a suspect is using high-intensity lights in connection
with an "indoor grow" of marijuana.
In Kyllo, the U.S. Supreme Court held that the warrantless use of a thermal imaging device
upon a private residence constitutes an illegal "search." (Kyllo (2001) 533 U.S. 27.) The
majority decision concluded that thermal imaging reveals information about what is going on
inside a home, the most constitutionally protected area that exists. The fact that this
information (namely, that unusual warmth is being generated) may not qualify as an "intimate
activity" of daily life makes no difference: "In the home, all details are intimate details,
because the entire area is held safe from prying government eyes." The majority found that
where "the Government uses a device that is not in general public use, to explore details of
the home that would previously have been unknowable without physical intrusion, the
surveillance is a 'search' and is presumptively unreasonable without a warrant."
As with all search warrants, if a thermal imaging warrant fails to establish probable cause on
its face (e.g., insufficient corroboration of information from an anonymous informant), an
officer cannot, in good faith, rely on the magistrate's issuance of the warrant and the evidence
obtained will be suppressed. (Gotfried (2003) 107 Cal.App.4th 254.)
The use of other technologies that are available to the public and are not intrusive into
protected areas are distinguishable from the thermal imaging device in Kyllo. For example,
the use of night vision goggles is not a Fourth Amendment search. (Lieng (2010) 190
Cal.App.4th 1213, 1228.)
15.
Closed Containers
Opening closed containers is a search necessitating a warrant or an exception to the warrant
requirement. "The fact that law enforcement agents are lawfully in possession of containers
does not give them authority to conduct a warrantless search of the contents of those
containers." (Wilkinson (2008) 163 Cal.App.4th 1554, 1570.)
Example:
Compact discs containing computer data images and belonging to defendant were
closed containers and could not be searched without a warrant. The discs were handed
over to police by a roommate who had viewed the discs and reported that they
contained evidence of criminal conduct. The content of the discs was not apparent
without opening the files. Although officers could view images on the discs already
viewed in the private search by the roommate, they could not direct the roommate to
look through additional discs for more evidence of sexual content. (Wilkinson (2008)
163 Cal.App.4th 1554, 1569-1572.)
A person can, through her actions, waive an expectation of privacy in a closed container. For
example, "an unequivocal, contemporaneous, and voluntary disclosure" to a peace officer that
a container or package contains contraband would waive "any reasonable expectation of
privacy in the contents." (Monghur (9th Cir. 2009) 588 F.3d 975, 980.)
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3.8e
Outer Door Locks
In a single decision, one California appellate court has found that inserting a key into a front
door lock fell within a "minimal intrusion exception" to the warrant requirement so that an
officer in lawful possession of a key could insert the key into the defendant's front door,
establish that the key unlocked the door, and then use that information as support for a
warrant to search the residence. The court did not determine if testing the key was an actual
search: it limited its holding to a finding that testing the key was reasonable and served
legitimate investigative purposes. (Robinson (2012) 209 Cal.App.4th 232.)
17.
Businesses
A business establishment may not be searched based solely on evidence of illegal drugs sales
by someone who is neither an owner nor employee of the business.
Example:
18.
Police obtained a search warrant for a West Valinda bar based on information that a
bar patron was routinely selling methamphetamine from the bar. Nothing in the
affidavit indicated that the narcotics were being stored in the bar or that the patron was
affiliated with the business. HELD: The sale of controlled substances by someone
unconnected to the business establishment does not provide sufficient probable cause
for a warrant. (Garcia (2003) 111 Cal.App.4th 715.)
Private Searches
It is not a search, within the meaning of the Fourth Amendment, for government officials to
examine an item already searched by a private person and made available for inspection if law
enforcement stays within the scope of the intrusion effected by the private party. The reason
is that the legitimate expectation of privacy in the item is extinguished by the private party's
intrusion. (Jacobsen (1984) 466 U.S. 109; Wilkinson (2008) 163 Cal.App.4th 1554; Tosti
(9th Cir. 2013) 733 F.3d 816, 821.) This rule would not apply if the private person was
working as a government agent.
Examples:
Private freight employees inspecting a damaged parcel observed a loose white
powder. Opening the package, they found a tube containing plastic bags of powder.
They called the DEA, whose agents limited their visual inspection to what the freight
employees had removed. HELD: The DEA inspection was not a search because the
agents infringed no legitimate expectation of privacy. (Jacobsen (1984) 466 U.S.
109.)
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Example:
III.
Tosti took his computer to CompUSA for service, where employees found files with
child pornography and called the police. After observing numerous thumbnail images
of child pornography on the monitor, detectives had the employee open the images in
a slide show format. HELD: The officers did not conduct a "search" because the
CompUSA employee's viewing of the images had extinguished Tosti's reasonable
expectation of privacy in them. Looking at the enlarged images did not exceed the
scope of the private search because their depiction of child pornography was evident
from the thumbnails. (Tosti (9th Cir. 2013) 733 F.3d 816; accord, Wilkinson (2008)
163 Cal.App.4th 1554 [inspection of previously viewed computer disks]; but see
Michael E. (2014) 230 Cal.App.4th 261 [nothing indicated that additional files were
child pornography until after the police had them opened and examined].)
PLAIN VIEW
Under the general rule, when you see something in "plain view" from a place you have a right
to be, no "search" has taken place in any constitutional sense because no one can have a
reasonable expectation of privacy as to items in plain view. (Horton (1990) 496 U.S. 128.)
You may seize any object that is in plain view, as long as:
-
you have a lawful right to be in the place from which you are viewing the object;
-
the incriminating character of the object is immediately apparent, i.e., you have
probable cause to believe it is crime related; and
-
you have a lawful right of access to the location of the object.
(Dickerson (1993) 508 U.S. 366; Horton (1990) 496 U.S. 128, 136; Hicks (1987) 480 U.S.
321; Ortiz (1995) 32 Cal.App.4th 286, 291; Calvert (1993) 18 Cal.App.4th 1820, 1829;
LeBlanc (1997) 60 Cal.App.4th 157, 166.)
Simply because you see an object in plain view--even contraband--does not automatically
mean that you may legally enter without a warrant to seize it. You will need consent or
exigent circumstances. (LeBlanc (1997) 60 Cal.App.4th 157, 164, 167; Hull (1995) 34
Cal.App.4th 1448, 1452.)
Example:
Officer who was trying to locate resident stood on the public side of a side yard gate
and raised himself three inches on his tip toes to look over six-foot fence. His
observation of a cocked revolver in the side yard did not amount to a search.
Suspecting that the resident was home (warm car hood and light on in garage) and
knowing that a seven-year-old child lived there, the officer lawfully jumped over the
fence to retrieve the gun based on exigent circumstances. HELD: His observations
and the entry to seize the revolver were lawful. (Chavez (2008) 161 Cal.App.4th
1493, 1501, 1503.)
If officers observe evidence during an exigency--such as during a lawful "protective sweep"-they may re-enter a residence to seize the evidence if the seizure is close in time during an
uninterrupted police presence. (Chapman (2012) 204 Cal.App.4th 1004, 1016.)
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Example:
3.8g
Officers responded to a shooting in a residence and were instructed by defendant to
help his son (whom he had shot) in the house. Officers conducted a protective sweep
and found the deceased victim in the kitchen. During the sweep, they also observed
evidence related to the shooting. Second-wave responders re-entered the house to
examine the scene. The coroner found a shell casing and a divot in the floor under the
body amidst the pool of blood; all of the other evidence was in plain view. HELD:
The second-wave responders' close-in-time seizure of plain view evidence was lawful.
Courts will not require that first-responders hamper their primary duty and increase
the danger to themselves and others by stopping to seize evidence observed in plain
view during a protective sweep. (Chapman (2012) 204 Cal.App.4th 1004.)
There is no requirement that you discover an object "inadvertently." (Horton (1990) 496 U.S.
128; Bittaker (1989) 48 Cal.3d 1046.) It does not matter that you "may have gone to the spot
from which the evidence was seen with the hope of being able to view and seize the
evidence" so long as you were lawfully in the place where you made the observation. (King
(2013) 131 S.Ct. 1849, 1858.) And the use of a flashlight does not convert a plain view
observation into a search. (Chavez (2008) 161 Cal.App.4th 1493, 1501.)
Also note that the Ninth Circuit distinguishes a "plain view" nonsearch from a "visual entry"
search. A "visual entry" search occurs, for example, when a door to a residence is opened in
response to a threat or command or kept open against the occupant's wishes. Like all
residential searches, it requires a warrant or probable cause plus an exception to the warrant
requirement. (Washington (9th Cir. 2004) 387 F.3d 1060, 1070.)
A.
Lawful Intrusion Requirement
Before you may seize an object in plain view, you must lawfully be where the object is
located. (Coolidge (1971) 403 U.S. 443.) Typically, if you are already lawfully inside the
premises conducting some type of search, it will be because:
-
you have a search warrant or an arrest warrant; or
-
exigent circumstances exist; or
-
you have consent.
However, you must remember that no matter which of these justifications explains your
presence in the building, the doctrine of "plain view" does not expand that justification.
(Meyers (1979) 25 Cal.3d 67; Williams (1988) 198 Cal.App.3d 873.) Also, if you are
lawfully inside the premises because of "consent," that consent must be valid. If the consent
to enter or search was given in response to your assertion of authority (coercion) or because
you misrepresented your purpose (trick or ruse), it is invalid, and seeing something in plain
view inside does not remedy the situation.
Example:
If you are lawfully inside on the basis of an arrest warrant, you may only look for the
suspect in places where a person could hide. Similarly, if you find him, arrest him and
question him in the living room, you may not later take him into a different room, just
to get a "plain view" look at the contents of that other room. (Sanderson (1980) 105
Cal.App.3d 264.)
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Example:
Police, while arresting a suspect at the door to his hotel room pursuant to two arrest
warrants, observed in plain view two glass cocaine pipes inside the room. The
officers were entitled to seize the pipes. However, even though the pipes provided
probable cause that there were more narcotics or paraphernalia inside the room, a
search warrant was needed before the officers could lawfully search the room.
(LeBlanc (1997) 60 Cal.App.4th 157, 166-167.)
Example:
Officers were conducting a valid, warrantless administrative inspection of an
automobile repair shop when they came across evidence of drugs in plain view and
plain smell. The fact that, in deciding to conduct the inspection, the officers may have
subjectively hoped to find evidence of other crimes was irrelevant. (Calvert (1993) 18
Cal.App.4th 1820, 1829-1831.)
Example:
Trial court found voluntary consent when officers asked Smith through an open front
window for permission to enter her apartment to conduct a probation compliance
check on Jones. Smith said she had to get dressed, walked out of the front room,
returned, opened the door, and said, "You can check but [he's] not here." The officers
walked into the first-floor kitchen, where a dryer was making a loud banging noise.
One of the officers opened the dryer door to stop the noise and saw a cellophanewrapped package of marijuana inside. HELD: The officer lawfully opened the dryer
door to eliminate the noise so that they could call to others in the apartment and safely
hear the movements of others in the residence. The marijuana was then in plain view.
(Smith (2010) 190 Cal.App.4th 572.)
Example:
Acting on an anonymous tip, an officer went to a storage facility to check out the
reported "drugstore" in locker 17. The complex was open to the public, and the door
to locker 17 stood ajar a couple of feet, apparently due to a recent burglary. Through
the open door, the officer saw so many boxes of pharmaceutical narcotics (morphine,
Demerol, codeine, etc.) that he concluded they must have been stolen. He walked
inside to take a closer look, then got the renter's name and address from the manager,
drove to the defendant's residence and arrested him. The court held that even though
the warrantless entry into the locker was illegal, the prior plain sight observation of the
drugs from the hallway outside provided probable cause to justify the arrest.
(Campobasso (1989) 211 Cal.App.3d 1480.)
Note:
If there is an irregularity with a plain view seizure or re-entry to seize
evidence, prosecutors may be able to invoke the doctrine of inevitable
discovery. This doctrine is not based on a showing that officers had sufficient
probable cause to obtain a warrant but failed to do so. Rather, it requires a
showing that a particular item of evidence would have been discovered
independently. For example, where a dead body was discovered in a
residence, it was reasonable to expect that the coroner in the normal course of
his duties would have examined and moved the victim's body and thus found
the shell casing and other evidence underneath the body. (Chapman (2012)
204 Cal.App.4th 1004, 1022-1023.)
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B.
3.9
The "Nexus" Rule
One of the requirements for lawfully seizing an object in plain view is that you must be aware
of some connection or "nexus" between the object and criminal behavior. In other words, you
must never seize evidence in plain view unless you can specifically state why you have
"probable cause to believe that the seized article will aid in a particular apprehension or
conviction." (Hayden (1967) 387 U.S. 294.)
This "nexus" exists automatically in the case of "fruits" of the crime, instrumentalities of the
crime, or contraband. But in the case of less obvious crime-related objects, you will need
more than your personal hunch or suspicion. You will need some specific facts. (Nunes
(1980) 100 Cal.App.3d 915; Miller (1976) 60 Cal.App.3d 849; Bittaker (1989) 48 Cal.3d
1046.)
According to the United States Supreme Court, your information must amount to more than
just "reasonable suspicion." Normally, you will need actual probable cause to believe an
object in plain view is contraband or evidence of a crime before you may legally search it
(i.e., move it at all) or seize it. (Hicks (1987) 480 U.S. 321; Williams (1988) 198 Cal.App.3d
873; Horton (1990) 496 U.S. 128.)
Example:
Officers were legally inside a rundown apartment without a warrant because of
exigent circumstances (gunshots). They discovered several firearms and noticed some
fancy stereo equipment, which they suspected was stolen. The officers copied down
the serial numbers from the equipment, phoned them in and verified that the objects
were stolen before confiscating them. The U.S. Supreme Court held that (1) it did not
constitute a search--and it was therefore legal and proper--to obtain and run the serial
numbers that were truly in plain sight, i.e., that could be obtained without moving the
object at all; (2) however, it constituted an illegal search to have moved some of the
items, even slightly, to observe the numbers; and (3) this movement or "search" was
illegal because it was based only on "reasonable suspicion" and not "probable cause."
Furthermore, it was "unrelated to the objectives of the authorized intrusion." (Hicks
(1987) 480 U.S. 321, 325; see also Clark (1993) 5 Cal.4th 950, 980.)
Example:
Officer had probable cause to believe a VCR he saw in the front seat of a vehicle was
stolen and therefore seize it because (1) he had seen the suspect, who was nervous and
had prior burglary arrests, carrying an object hidden in a blanket out of a mobile home
park where the suspect did not live, (2) the suspect had a screwdriver in his back
pocket, and (3) when the officer approached the car where the suspect had put the
object, the passenger said to the suspect, "I told you not to do it." (Stokes (1990) 224
Cal.App.3d 715, 721.)
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3.10
IV.
SEARCH AND SEIZURE - PREMISES
EXIGENCIES/EMERGENCIES
Warrantless entries by police into a residence are presumed illegal unless justified by consent
or exigent circumstances. (Huff (2012) 132 S.Ct. 987; King (2011) 131 S.Ct. 1849; Payton
(1980) 445 U.S. 573, 586; Coddington (2000) 23 Cal.4th 529, 575; Frye (1998) 18 Cal.4th
894, 989; Bennett (1998) 17 Cal.4th 373, 384.) "Exigent circumstances" means an
emergency requiring swift action to prevent:
-
imminent danger to life or welfare (including yours); or
-
serious damage to property; or
-
imminent escape of a suspect; or
-
the destruction of evidence. (King (2011) 131 S.Ct. 1849; Olson (1990) 495 U.S. 91;
Wharton (1991) 53 Cal.3d 522, 577; Wilkins (1993) 14 Cal.App.4th 761, 771; Frye
(1998) 18 Cal.4th 894, 989; Snead (1991) 1 Cal.App.4th 380, 385.)
"When there is a compelling need for official action and no time to secure a warrant, exigent
circumstances excusing compliance with the warrant requirement exist." (Coddington (2000)
23 Cal.4th 529, 580.) In other words, the "exigencies of the situation" make a warrantless
search "objectively reasonable." (Mincey (1978) 437 U.S. 385, 393-394.) There is not a
bright-line rule for determining if exigent circumstances exist, and courts will look to the
totality of the particular circumstances known to the officer at the time of the entry or search.
(Huff (2012) 132 S.Ct. 987; Rogers (2009) 46 Cal.4th 1136, 1160.)
Example:
It was reasonable for an officer, who had reasonable suspicion of a possible felony, to
take one step inside a motel room through the door, which had swung partly open
when he knocked on it, to protect himself because he could see that a woman inside
was reaching under a bed and he feared she might be reaching for a weapon. (Wilson
(1997) 59 Cal.App.4th 1053, 1061-1062.)
It is important to remember that both a warrantless entry and a warrantless search following
the entry require justification. Many times, the justifications will overlap. (Dickson (1983)
144 Cal.App.3d 1046.) However, your "hunch" or the unparticularized suspicion of a lay
witness will not suffice. (Morton (2003) 114 Cal.App.4th 1035, 1038.) Also, remember that
when "the exigency ends, the warrant requirement reemerges." (Keener (1983) 148
Cal.App.3d 73, 78.)
Example:
After Celis was detained in his back yard following extensive surveillance connecting
him to a statewide drug-smuggling ring, officers entered the residence to search for
others. HELD: The officers could not enter the residence without reasonable
suspicion that persons posing a danger to officer safety were inside. A vague,
unsubstantiated suspicion will not suffice. (Celis (2004) 33 Cal.4th 667, 679.)
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3.10a
To Prevent Imminent Danger to Life
A warrantless entry into a residence is lawful based on an objectively reasonable basis for
fearing that violence is imminent. This includes an imminent threat to your safety and to the
safety of others. "The Fourth Amendment standard is reasonableness, and it is reasonable for
police to move quickly if delay 'would gravely endanger their lives or the lives of others.'"
(Sheehan (2015) 135 S.Ct. 1765, 1775; Huff (2012) 132 S.Ct. 987; see Arellano-Ochoa (9th
Cir. 2006) 461 F.3d 1142; Chavez (2008) 161 Cal.App.4th 1493, 1503--entering a fenced
yard to seize handgun based on potential danger to officer and others.)
Courts must consider all of the facts confronting officers in determining if an entry is
permissible. The Supreme Court has recognized that even mundane events or conduct that is
lawful but nevertheless alarming in context "may portend imminent violence" sufficient to
justify an immediate entry. (Huff (2012) 132 S.Ct. 987.)
1.
"Protective Sweep"
A "protective sweep" is a limited, quick, visual inspection of those places where a person who
poses a danger to you or others might be hiding. (Buie (1990) 494 U.S. 325, 327; Furrow
(9th Cir. 2000) 229 F.3d 805, 811.) "Protective sweeps" generally involve two scenarios:
officers are inside a residence to effect an arrest or perform other inherently at-risk duties or
officers must enter a residence based on some immediate exigency.
Note:
The Ninth Circuit uses different terminology for a "protective search incident
to arrest" and a "protective sweep" based on reasonable suspicion that persons
posing danger to officers or others are in non-adjoining areas. However, the
legal standards in the Ninth Circuit and in the California state courts are the
same. (Lemus (9th Cir. 2009) 582 F.3d 958, 962-963.)
With regard to arrests, in Buie the U.S. Supreme Court determined that if you legally arrest a
dangerous felon inside a residence, you are entitled to ensure your own safety by:
-
looking into "closets and other spaces immediately adjoining the place of arrest from
which an attack could be immediately launched," without needing any probable cause
or reasonable suspicion and
-
conducting a protective sweep throughout the remainder of the residence, i.e.,
looking anywhere else where another person could be hiding, if you have reasonable
suspicion, based on specific facts, "that the area swept harbors an individual posing a
danger to the officer or others." (Buie (1990) 494 U.S. 325.)
This type of "protective sweep" requires that you clearly distinguish between "immediately
adjoining" areas and other areas where someone could be hiding. Reasonable suspicion that
persons posing a danger to officer safety (or others) is required for a search into any area not
immediately adjoining the place you have a lawful right to be. (Celis (2004) 33 Cal.4th 667,
679.) This same test applies to an entry to conduct a protective sweep after suspects have
been arrested outside the premises.
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Example:
It was proper under Buie, for officers to enter a house without a warrant and make a
protective sweep for other suspects, where they had just apprehended and arrested the
defendant (an armed robber) in front of the house and knew that he normally "pursued his
criminal activities with accomplices in a most dangerous manner." Accordingly, the
weapon that was discovered during the sweep was admissible. (Maier (1991) 226
Cal.App.3d 1670; see Paopao (9th Cir. 2006) 469 F.3d 760, 766.)
Example:
Officers arrested Brevetz in his home. Because Brevetz had previously harbored a
fugitive and possessed a sawed-off shotgun, it was proper for the officers to then sweep
the home to determine whether anyone else was present and to seize contraband
discovered in plain view during the sweep. (Brevetz (1980) 112 Cal.App.3d 65.)
Example:
A domestic violence suspect was arrested outside the apartment where he was reported to
be staying. The victim had already fled to safety. The officers' generalized concern based
on past domestic battery investigations did not amount to reasonable suspicion to believe
that there were potentially dangerous persons inside the residence. HELD: The
protective sweep of the apartment was unlawful. (Ormonde (2006) 143 Cal.App.4th 282,
295.)
Example:
Hours after a woman reported that she had been assaulted by her boyfriend, officers went
to his residence to arrest him. Defendant stepped outside. After he was handcuffed, he
asked his roommate, who had also come outside, to retrieve his keys and shoes from his
bedroom. One officer accompanied the roommate back into the house. The roommate
was not armed, he did not have wants or warrants, he said no one else was inside, and the
officers were not aware of ongoing criminal activity at the residence. HELD: The
officer's entry with the roommate was unlawful. (Werner (2012) 207 Cal.App.4th 1195.)
The other category of "protective sweep" involves the immediate need to sweep a residence in
response to an exigency connected with the residence.
Example:
Officers were investigating a tip that stolen property, including guns, was being stored in
a residential garage. They knew one of the occupants was dangerous. As they
approached the residence, two males came out of the garage, saw them, and ducked back
in, yelling "Look out! The cops!" An officer identified himself and told the occupants to
come out. After five males came out, the officer entered the garage to see if anyone else
remained. Once inside, the officer did not see any other suspects but did see the stolen
property. The evidence was admissible because (1) the officer was justified in protecting
himself by entering the garage to make sure no one who might shoot him remained in the
garage and (2) the evidence was in plain view from that lawful vantage point. (Mack
(1980) 27 Cal.3d 145.)
Example:
Protective sweep of defendant's residence was proper where a large sum of money inside
a brown paper bag had been seized from a man previously seen leaving the residence,
there was a heavy volume of unusual vehicular traffic outside the residence, a well-armed
lookout was outside and sounded a vehicle's horn, two persons attempted to flee, and the
defendant and his girlfriend were reluctant to comply with the agents' requests. (MezaCorrales (9th Cir. 1999) 183 F.3d 1116, 1117.)
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3.10c
If you see crime-related evidence in plain view during a protective sweep, you may seize it
without a warrant. (Buie (1990) 494 U.S. 325, 330.) You may also re-enter to seize evidence
observed in plain view during the initial entry but not seized because you were performing
duties that took priority over the seizure of evidence, such as looking for victims or suspects.
(Chapman (2012) 204 Cal.App.4th 1004, 1014, 1016.) Absent these circumstances, it is
better to obtain a warrant so that you can search more thoroughly for other similar evidence.
Example:
Police entered an apartment lawfully under the exigent circumstances doctrine. While
making a "protective sweep" inside, they saw a gun in plain view. Instead of seizing
the gun, they left and directed another officer to pick it up later. The subsequent reentry required a warrant. (Keener (1983) 148 Cal.App.3d 73; but see McDowell
(1988) 46 Cal.3d 551, 564.)
"Protective sweeps" have been approved in cases involving an officer's presence in a
residence to perform duties other than making an arrest. For example, with "specific and
articulable" facts, officers could conduct a security sweep prior to a residential probation
search. (Ledesma (2003) 106 Cal.App.4th 857.)
2.
Injured Victim/Animals or Ill/Missing Person Inside
You may enter a home without a warrant if you have probable cause to believe (1) that an
imminent threat exists to the life or welfare of someone inside (Olson (1990) 495 U.S. 91,
100; Coddington (2000) 23 Cal.4th 529, 580) or (2) that a person reliably reported as missing
is inside (Wharton (1991) 53 Cal.3d 522, 577; Hochstraser (2009) 178 Cal.App.4th 883).
Also, under the related "emergency aid doctrine," you may enter and search a residence
without probable cause if you have "a reasonable basis for believing" that an occupant is
seriously injured or threatened with serious injury. (Brigham City (2006) 547 U.S. 398, 403;
Fisher (2009) 558 U.S. 45, per curiam; Troyer (2011) 51 Cal.4th 599; Coddington (2000) 23
Cal.4th 529, 580; Tamborino (1986) 41 Cal.3d 919, 924.) The same is true where animals are
in danger. (Chung (2010) 185 Cal.App.4th 247; Broden (1999) 70 Cal.App.4th 1212, 12201222; Pen. Code, § 597.1.)
Your subjective state of mind and subjective motivation for the entry are irrelevant
considerations: an entry is reasonable if the circumstances, viewed objectively, justify your
actions. (Brigham City (2006) 547 U.S. 398, 404; Fisher (2009) 558 U.S. 45, per curiam;
Troyer (2011) 51 Cal.4th 599.) "Absolute proof" of the "imminent emergency" is not
required. (Seminoff (2008) 159 Cal.App.4th 518, 528; see Troyer (2011) 41 Cal.4th 599 [no
one fact--e.g., bloodstains inside a home--is a prerequisite to finding exigency].)
Example:
Around 4 a.m., officers responded to the apartment of an elderly woman who had been
brutally raped and was bleeding severely. They heard loud music coming from next
door and wanted to check for possible witnesses, but no one answered despite
persistent knocks. They considered this to be unusual and thought there might be
another victim inside. A check of the door indicated that it was unlocked. They
peeked inside, saw legs sticking out by a sliding glass door, entered, and discovered
the rapist. HELD: The entry was lawful. (Cain (1989) 216 Cal.App.3d 366.)
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Example:
Neighbors reported that they had not seen the victim for two weeks, and officers had
received two calls expressing concern for the victim. One month earlier they had
responded to a domestic disturbance reported at the victim's apartment. No one had
responded to a note from the police asking the victim to call, there was mail in her
mailbox, and officers found the front door unlocked after receiving a neighbor's report
that someone had been banging on the door. HELD: Warrantless entries may be
appropriate when police are looking for an occupant "reliably reported as missing."
The officers lawfully entered the apartment based on the totality of the circumstances
indicating an emergency situation. (Wharton (1991) 53 Cal.3d 522, 576-577.)
Example:
Officers received a formal missing person report by a third party on behalf of the
victim's mother, who had been trying to locate her daughter for over three weeks. The
victim's mother had witnessed defendant threatening to lock the victim in the
basement storage area of defendant's apartment complex. Neighbors confirmed that
the victim had not been seen for several weeks and verified that defendant controlled
the keys to the storage unit. When the police confronted defendant with the threat to
lock the victim in the storage area, defendant reacted physically and denied that the
victim would be found there. HELD: Warrantless entries into the storage rooms to
search for the victim were justified by exigent circumstances. (Rogers (2009) 46
Cal.4th 1136, 1160-1161.)
Example:
Victim's daughter called Santa Clara police after she could not get in touch with her
mother, who had reported a domestic violence incident the night before. The victim
lived with defendant and their two-year-old son. Officers went to the victim's
apartment and repeatedly called out and pounded on the door. A sergeant responding
to the scene instructed one officer to enter the apartment through an open window.
They found defendant sitting in the dark in the bedroom, but they could not locate the
victim or their son. Defendant said that the victim had left that morning. Otherwise,
the defendant gave evasive and vague responses to their questions. On the kitchen
table, officers found the victim's fanny pack containing her car keys, cell phone,
wallet, driver's license and credit card. Defendant's conduct and the fact that officers
found used Sawzall blades and could smell the odor of bleach in the otherwise unkept
apartment caused them to search defendant's car. Inside the car, they found the
victim's dismembered remains in multiple small closed Tupperware containers.
HELD: The entry into and search of the apartment was lawful based on the "urgent
need" to locate the victim and their son and "verify their well-being." The search of
the car was justified by probable cause to believe that the vehicle contained evidence
of a crime relating to the victim's disappearance. (Hochstraser (2009) 178
Cal.App.4th 883, 894.)
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3.10e
Example:
Officer responded to ADW call and found an infant brutally cut and injured. Reliable
information indicated the assailant was drunk and had gone home, where he lived with
his own young son. After discovering a trail of fresh blood and broken glass at the
residence, knocking and announcing at the front and back doors, and observing the
lights go out in response, the officer could legally force a warrantless entry based on
concern for the son. (Neighbours (1990) 223 Cal.App.3d 1115, 1123.)
Example:
A hotel patron cut his foot and called the front desk; someone then called 9-1-1.
When two police officers arrived, the door to the room was open and some hotel
employees, as well as some firefighters, were already inside. (Paramedics came later.)
The officers entered "to see what was going on" and stayed for about 10 minutes.
Their observations resulted in a parole search of the premises, which turned up
narcotics. HELD: The warrantless entry to ensure the safety of those present was
valid. (Snead (1991) 1 Cal.App.4th 380, 385.)
Example:
Officers were dispatched following an emergency call at 5 a.m. from an anonymous
"hysterical male" screaming at the dispatcher to "get the cops here now!" When
officers arrived, the door was ajar and their knock opened it further. They entered and
found several people sitting around a large amount of drugs on the kitchen table. The
officers looked for a victim and left the house when no emergency was apparent.
They immediately obtained a search warrant based on their observations inside the
residence. HELD: The officers lawfully entered the residence under the exigent
circumstances exception. The officers were not required to verify the caller's identity
or otherwise slow down their response time by checking the caller's facts. (Snipe (9th
Cir. 2008) 515 F.3d 947.)
Example:
A four-year-old boy walked into the lobby of the Holiday Inn in the middle of the day
to report that he could not wake up his mother in their room. Hotel staff checked on
her and called paramedics. An officer tried knocking loudly and calling out before
entering the room with a pass key. As he tried to locate the mother, he detected a
strong odor of marijuana and observed a baggie of methamphetamine, hunting knives,
and a loaded magazine for a handgun. The mom, revived by the paramedics,
consented to a search for weapons. HELD: The entry was lawful in that it was based
on a valid emergency. The court noted that it would have been a dereliction of duty
for the officer not to check on the mother's welfare. (Seminoff (2008) 159
Cal.App.4th 518.)
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Example:
Police, who had probable cause to believe that kidnap victims were inside, and who
had not deliberately delayed in attempting to obtain a warrant, could enter without
one. (Coddington (2000) 23 Cal.4th 529, 576-581.)
Example:
A downstairs neighbor called 9-1-1 after she was awakened by loud banging and the
sound of high-pitched yelping and howling from the upstairs condominium. She told
the responding officers that the dog seemed to be in pain and that in the past she had
called animal control after hearing similar noises. When officers went upstairs to
investigate, defendant said that he did not have a dog despite the faint sound of a dog
whimpering inside. The officers entered without defendant's permission and found
dog hair and blood on the bathroom walls and floor and a small dog in a plastic
toolbox. HELD: The entry was lawful. "Where an officer reasonably believes an
animal on the property is in immediate need of aid due to injury or mistreatment, the
exigent circumstances exception to the warrant requirement of the Fourth Amendment
may be invoked to permit warrantless entry to aid the animal." (Chung (2010) 185
Cal.App.4th 247.)
Example:
Animal Control officers were called out to a report of a runaway horse on the road.
The horse was thin and made its way back to a rural residence with a broken fence
where it appeared that the horse had gotten through. The officers heard puppies
barking inside the residence, heard a dog whining in the garage, and heard dogs
barking incessantly in the back yard. There were strong odors of excessive fecal
matter indicating unhealthful housing conditions, and the officers knew of prior
reports regarding the condition of horses and pit bulls on the property. One of the
officers looked inside the garage through a broken window to see if the dog needed
assistance and saw a treadmill and slat mill device associated with dog fighting. All
of the dogs on the property in make-shift kennels were pit bulls, two of which had
visible scars. The officers' observations led to a search warrant for the residence and
outbuildings. HELD: "The exigent circumstances doctrine protects reasonable law
enforcement conduct." The officers acted reasonably in looking inside the garage and
walking into the back yard to check on the welfare of the animals on the property.
(Williams (2017) 15 Cal.App.5th 111.)
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3.11
Remember, however, that once you are lawfully inside, your "scope" is limited. You may
only search or do whatever is necessary to resolve the emergency--such as determining the
presence of victims--and nothing more. (Ray (1999) 21 Cal.4th 464, 477; Tamborino (1986)
41 Cal.3d 919.)
Example:
Officers responded to a house where there had been reports of "screams." They
knocked on the door and requested permission to enter and investigate. The man who
answered the door appeared very nervous and ran back into the house toward a
bedroom. Fearing for their own safety and that of a possible victim, the officers
followed the man and found weapons and narcotics in the bedroom in plain view.
After the defendant had been arrested and taken to the living room, one officer went
back to the bedroom and looked around more closely. He found more narcotics in a
cigar box. The court found the entry of the house proper. However, the search of the
cigar box was invalid because it was not justified by either the emergency or "plain
view." (Frazier (1977) 71 Cal.App.3d 690.)
Example:
Officers heard a radio broadcast of an "ambulance shooting" at an address on Nichols
Canyon. When they arrived, they observed two cars in the driveway, bullet holes in
the door of the premises, and blood on the floor and patio. No one answered the door,
so they entered and searched the entire house, including a trash bag, which they
thought might contain a body. Instead, they found contraband. The warrantless entry
and search of the bag were lawful. (Soldoff (1980) 112 Cal.App.3d 1.)
Example:
Exigent circumstances justified two separate entries into defendant's apartment to
search for a missing child last seen talking to a male who lived there. As to the first
entry, the fact that it was a child who was missing "heightened" the exigency because
she might have been injured or unable to escape. The second exigent entry occurred
the next day after officers knew that the child was a victim of a crime and that
defendant was involved; the search was limited to areas where a child could be hiding
or hidden and it lasted no more than 15 minutes. (Panah (2005) 35 Cal.4th 395, 466467.)
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a.
SEARCH AND SEIZURE - PREMISES
"Emergency Aid" Doctrine
The "emergency aid exception" is merely one recognized category of exigency that permits a
warrantless entry or search to "render emergency assistance to an injured occupant or to
protect an occupant from imminent injury." (Brigham City (2006) 547 U.S. 398, 403; Fisher
(2009) 558 U.S. 45; Duncan (1986) 42 Cal.3d 91, 97.) The exception is not dependent on the
"officers' subjective intent or the seriousness of any crime they are investigating when the
emergency arises" and does not require "ironclad proof of 'a likely serious, life-threatening'
injury" or even probable cause: the test is whether there was an "objectively reasonable basis
for believing that someone inside is in need of immediate aid." (Fisher (2009) 558 U.S. 45,
47; Sheehan (2015) 135 S.Ct. 1765; Troyer (2011) 51 Cal.4th 599.) Courts may not rely on
hindsight to determine that officers were mistaken because no one in the residence was, in
fact, injured or in danger. (Troyer (2011) 51 Cal.4th 599; Fisher (2009) 558 U.S. 45, 49.)
Example:
Officers responding at 3 a.m. to complaints of a loud party heard an altercation in the
residence and observed, through the window and screen door, a juvenile strike an
adult in the face, causing the adult to spit blood. HELD: The entry to assist the
injured adult and prevent further violence was lawful. "The role of a peace officer
includes preventing violence and restoring order, not simply rendering first aid to
casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout
only if it becomes too one-sided." (Brigham City (2006) 547 U.S. 398.)
Example:
Officers investigating a disturbance call were directed to a residence where someone
was reportedly "going crazy." On their way, they saw that the front of the pickup
parked in the driveway was smashed, fence posts on the property were damaged, and
three house windows were broken. They saw blood on the hood of the pickup, blood
on clothes inside the truck, and blood on one of the doors to the house. Through a
window, they observed Fisher with a cut hand inside the house screaming and
throwing things. The back door was locked and barricaded with a couch. Fisher
would not respond to the officers' attempts at contact. The Supreme Court held that a
"straightforward application of the emergency aid exception" permitted a warrantless
entry to protect Fisher or others in the residence. (Fisher (2009) 558 U.S. 45.)
Example:
The supervisor of a San Francisco group home for the mentally ill called the police for
help in transferring a resident who had become unstable to a psychiatric hospital. The
supervisor and two officers went to Sheehan's room, knocked, announced that they
wanted to help her, and then used a key to enter her room. Sheehan grabbed a kitchen
knife, threatened to kill them, and ordered them to get out. The officers left the room
and then made the decision to re-enter to try to subdue Sheehan. (Sheehan sued the
city for subduing her in a manner that did not reasonably accommodate her disability.)
HELD: The entry and re-entry were lawful. (Sheehan (2015) 135 S.Ct. 1765.)
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3.12a
Example:
An officer responded to a report of "shots fired" that indicated that a male had been
shot, possibly twice. He found a woman with multiple gunshots wounds and a man
bleeding profusely from a head injury in front of a two-story residence; he did not see
a male shooting victim. The man with the head injury gave inconsistent and evasive
answers in response to the officer's question whether anyone was inside the residence
and refused to unlock the front door so that other officers could look inside. The
responding officer determined that the shooting had occurred at or near the front door
and noted blood spatters and smudges on the door indicating that someone who was
bleeding had come out of or gone into the residence. He assembled a team to enter the
house to look for additional victims or suspects. Searching all the rooms, the team
kicked open a locked upstairs bedroom where defendant was cultivating marijuana.
HELD: Because the circumstances supported an objectively reasonable belief that
another shooting victim could be inside the house, the entry and search of the
residence and the locked upstairs bedroom were justified under the emergency aid
exception. It did not "meet the needs of law enforcement or the demands of public
safety to require officers to walk away from a situation like the one they encountered
here." (Troyer (2011) 51 Cal.4th 599.)
Example:
Officers on patrol in Hollywood Hills received a radio call reporting a screaming
woman and "distressed moaning" at a named address on Jupiter Drive. When the
officers approached the front door, they could hear several people inside the residence
arguing very loudly--male and female voices--although they could not understand
what was being said. One officer observed two men making gestures similar to people
arguing. The officers knocked and announced multiple times before defendant Pou
and another man answered. Pou said he did not want the officers to enter the house.
Based on their need to check that everyone inside the house was unharmed, the
officers entered and conducted a quick search of all the rooms and found narcotics in a
closed bedroom closet. HELD: The entry and search of Pou's residence fell squarely
within the emergency aid exception. It was reasonable for the officers to believe that
the immediate entry was necessary to provide emergency assistance for the woman
who had been reported screaming or to prevent additional harm to that victim or
others. (Pou (2017) 11 Cal.App.5th 143.)
As with all searches based on exigencies, the scope of a search under the emergency aid
exception is limited by the nature of the emergency. Generally, a walk-through search limited
to a search for persons injured or threatened with injury is proper when the whereabouts of
the persons inside a residence are unknown. (Troyer (2011) 51 Cal.4th 599--proper to
forcibly enter a locked bedroom and search for potential shooting victims when entry and
search of the residence is justified under the emergency aid doctrine; Pou (2017) 11
Cal.App.5th 143--okay to check all rooms in a "very large house.")
The "emergency aid" doctrine has also been applied to situations involving less than a full
entry of a residence.
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Example:
Although the nature of an exigency might not have justified entering a residence, it did
justify walking onto nonpublic areas and looking inside a house through a covered
window based on an objectively reasonable suspicion that someone inside might be
seriously injured or at risk of serious harm. (Gemmill (2008) 162 Cal.App.4th 958.)
Finally, the "objectively reasonable basis" for an entry and search is based on what the
officers knew at the time of entry.
Example:
b.
Officers mistakenly entered and searched the wrong residence because the wrong
address was reported by an Uber driver who had picked up a fare at the house across
the street. The search of the reported residence for a victim was still valid because the
officers did not have any reason to question the accuracy of the Dispatch, particularly
given the loud arguing they heard at the "wrong" residence and the failure of the
occupants to respond to their knocking after identifying themselves as the police.
(Pou (2017) 11 Cal.App.5th 143.)
"Community Caretaking"
California courts historically have drawn a distinction between exigent circumstances and the
"community caretaking" exception to the warrant requirement. The community caretaking
exception applies solely to the actions taken to protect and provide aid to the public. (See
Ray (1999) 21 Cal.4th 464; Madrid (2008) 168 Cal.App.4th 1050, 1056.) An officer's
subjective state of mind, motivation, or intent are not relevant in determining whether an
entry or search is lawful under the "community caretaking" exception. The question is
whether officers have an objectively reasonable basis for believing that aid is required.
(Brigham City (2006) 547 U.S. 398; Snipe (9th Cir. 2008) 515 F.3d 947, 951-952; see Madrid
(2008) 168 Cal.App.4th 1050, 1060, fn. 5.)
Example:
It was reasonable, under their "community caretaking function," for officers to enter a
residence without a warrant and assist a possible victim in distress, where the front
door had apparently been left wide open for hours, the place looked like it had been
ransacked, and no one responded to their announced presence. (See Ray (1999) 21
Cal.4th 464, 468.) (Note that this case would now be evaluated under the "emergency
aid exception" as discussed in Troyer (2011) 51 Cal.4th 599, which invalidated the
Ray Court's consideration of officers' subjective intent in determining the lawful bases
for a warrantless search. However, Troyer did not overrule Ray or discredit the entry
of a residence under the "community caretaking" doctrine.)
Example:
A neighbor reported that defendants were cultivating marijuana at their Santa Rosa
commercial nursery where they lived. Officers observed two marijuana leaves on the
neighbor's fence and marijuana debris in his driveway; the neighbor said he "believed"
that defendants were cultivating plants. The officers observed a small depression
under the fence, which led to their conclusion that defendants' marijuana crop must
have been stolen during the night. The officers climbed over a chained cattle gate and
contacted Morton at the residence. HELD: The officers could not have reasonably
believed that a warrantless entry was required to protect defendants' lives or property.
(Morton (2003) 114 Cal.App.4th 1039.)
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3.12c
For a discussion of "community caretaking" as justification for vehicle detentions, see
Chapter 4-II-B-3.
3.
Suspected Child Abuse
Courts will go fairly far in finding an exigency and permitting a warrantless entry to prevent
possible child abuse offenses.
Example:
Warrantless entry was justified to protect infant children where two-year-old was
found wandering around the neighborhood in diapers (not for the first time), he had
siblings, the front door was ajar, and no one responded to repeated knocking and
announcing. (Miller (1999) 69 Cal.App.4th 190, 198-199; see also Dawn O. (1976)
58 Cal.App.3d 160, 164.)
Example:
Late one evening, the brother of the victim personally reported hearsay information to
the police that his father was right then having sexual intercourse forcibly with his
disabled daughter. The officer had heard other information about prior acts of
sexuality in the house from a probation officer who was working with the family.
Accompanied by the brother, the officer entered the house and the father's closed
bedroom, finding the sex offense in progress. The warrantless entries were upheld.
(Brown (1970) 12 Cal.App.3d 600.)
Example:
A reliable informant reported that defendant molested children in a bedroom in his
garage. Police set up surveillance and saw defendant pick up a male juvenile and
drive him to the garage. Thereafter, defendant failed to respond to the officer's
repeated knocks on the bedroom door and announcement of his purpose. Despite lack
of any cry for help from the juvenile, the warrantless entry was proper given the
heinous nature of the crime possibly being committed. (Payne (1977) 65 Cal.App.3d
679.)
4.
Suspected Domestic Violence
Exigent circumstances may justify the entry of a residence that is the scene of possible
domestic violence if the circumstances indicate that the entry is necessary to protect the
victim by preventing ongoing or additional violence. Note, however, that although courts are
sensitive to the volatility of domestic violence investigations, California has never sanctioned
a domestic violence exception to the warrant requirement. (See Ormonde (2006) 143
Cal.App.4th 282.) The entry must be based on either (1) consent or (2) probable cause to
believe that someone inside the residence is in danger or presents a danger to you. Also, if
the possible domestic violence victim is "missing," that fact may give rise to exigent
circumstances to justify an entry or search to locate a missing person. (See Ch.2-IV-A-4;
Hochstraser (2009) 178 Cal.App.4th 883, 900-901.)
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Example:
At 11 p.m., officers responded to a report of "a man shoving a woman around." After
knocking without success, they saw a man inside and heard a shout. Thirty seconds
after knocking again, a woman answered. Although she claimed she was alright, she
was extremely frightened, appeared (to the experienced officer) to have been the
victim of felony battery, lied about being alone, and gave a suspicious story about
having fallen down the stairs. Believing that she might be under the threat of
continued violence and that there might be others in peril inside, the officers entered
the residence, where they encountered Higgins and observed signs of marijuana
activity. HELD: The warrantless entry was valid. The entry was motivated by the
officers' objectively reasonable safety concerns. (Higgins (1994) 26 Cal.App.4th 247,
251-255; see also Brooks (9th Cir. 2004) 367 F.3d 1128, 1135-1136 ["exigencies of
domestic abuse . . . may override considerations of privacy"]; Black (9th Cir. 2007)
482 F.3d 1035, 1041-1042.)
Example:
Officers responded to an early-morning report of domestic violence at an apartment
complex. When they arrived and knocked, they saw blood on the outside of the door.
The woman who answered had a bruised and swollen face. When they asked who had
injured her, she stepped back and pointed to the defendant inside the apartment, and
the officers entered. HELD: The warrantless entry was justified on the basis of
exigent circumstances (as well as implied consent) due to the significant risk that
would have resulted to the victim and any officers who stayed on the scene while a
warrant was sought. (Frye (1998) 18 Cal.4th 894, 989-990.)
Example:
A domestic violence victim reported that her estranged husband had assaulted her
outside his residence. Officers responded and detained a suspect 10 feet from the
front door. The officer then went into the apartment. The arresting officer testified, "I
don't think that I thought there were people in the house. I was just trying to
determine if there were people in the house." The officers knew that the victim was
safely away from the premises. HELD: The entry was not justified by exigent
circumstances. The officer's past experiences with domestic violence arrests was not,
standing alone, justification for a warrantless entry. (Ormonde (2006) 143
Cal.App.4th 282.)
5.
Re-Entries
You should be extremely careful about leaving and then re-entering again without a warrant
when the exigency that justified your original entry no longer exists. If you are outside only
briefly, and for a good reason, the reentry may be upheld as part of a "continuing police
presence." (McDowell (1988) 46 Cal.3d 551, 564; Ngaue (1992) 8 Cal.App.4th 896.) If the
exigency is continuing, the justification for the initial warrantless entry will apply to the
second entry.
Example:
Police responding to a call for assistance from a group home for the mentally ill
entered an unstable resident's room after knocking and announcing they wanted to
help her. The officers walked out after she armed herself with a knife and threatened
to kill them and the home supervisor. The reentry into the room to subdue her before
she could harm them or others was lawful. (Sheehan (2015) 135 S.Ct. 1765.)
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Note:
B.
3.13
Applying the "emergency doctrine" (versus the "exigency" exception), the
federal Ninth Circuit upheld a warrantless entry even after the suspected
domestic violence victim had left the premises because the "volatility of
situations involving domestic violence" justified the officer's reasonable belief
that there was an ongoing emergency based on continued angry hostile yelling
inside the residence. (Martinez (9th Cir. 2005) 406 F.3d 1160, 1164-1165.)
To Prevent Serious Damage to Property
The warrantless entry of premises may be justified under the emergency exception to protect
the owners' or occupants' property.
Example:
Commercial premises were found unlocked and unattended after hours. An officer
entered and discovered contraband while trying to locate the name and phone number
of the owner. The officer's actions were proper. (Parra (1973) 30 Cal.App.3d 729.)
Example:
If there is imminent likelihood of a fire, explosion, etc. (e.g., smell of gas or gasoline
or PCP coming from a building), a warrantless entry is proper. (Stegman (1985) 164
Cal.App.3d 936.)
C.
To Prevent the Imminent Escape of Suspect
It is proper to enter a residence without a warrant in order to prevent the escape of a suspect,
especially if he is armed and dangerous or has just committed a violent felony. (Parrison
(1982) 137 Cal.App.3d 529.)
Example:
1.
Three men and an armed woman hijacked a truck full of cigarettes, candy, and
sundries and kidnapped (briefly) the driver. A witness called the police, stating that
burglars were loading or unloading a truck at a nearby residence. When officers
arrived, the truck was gone, so they set up surveillance. They observed three men
carrying cases of cigarettes out of the residence to their cars. When the men drove
away, the officers stopped and arrested them. Because the female suspect apparently
had been armed during the hijack-kidnapping and none of those arrested was a
woman, the officers returned to the residence. They knocked, announced, waited, and
entered the house without a warrant. HELD: The entry, arrest of the woman, and
plain view observation of cases of cigarettes in the house were proper. (Kizzee (1979)
94 Cal.App.3d 927; see McGriff (1984) 158 Cal.App.3d 1151.)
To Make an Arrest
You may also enter a home without a warrant to arrest a suspect you have been following in
"hot pursuit." (McDowell (1988) 46 Cal.3d 551, 564; Johnson (1981) 30 Cal.3d 444, 451;
Lavoyne M. (1990) 221 Cal.App.3d 154; Lloyd (1989) 216 Cal.App.3d 1425.) Keep in mind
that if a suspect fails to submit to a lawful detention or arrest, an additional offense--either
Penal Code section 148 or section 69--has occurred in your presence. And, although the
seriousness of the crime may be taken into consideration in evaluating exigency based on the
destruction of evidence, it does not come into play in evaluating "hot pursuit." (Sims (2013)
134 S.Ct. 3.) (See full discussion of "Hot Pursuit," Ch. 2-V-B.)
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"Knock and Notice"
Generally speaking, if exigent circumstances permit you to enter premises without a warrant,
they will also excuse strict compliance with "knock and notice" requirements. (Escudero
(1979) 23 Cal.3d 800, 811, fn. 7; Kizzee (1979) 94 Cal.App.3d 927, 935.) Nevertheless, it is
good practice to announce your identity (police) and purpose whenever entering a residence,
unless to do so would be dangerous or futile. (Miller (1999) 69 Cal.App.4th 190, 200-202.)
Example:
Note:
D.
After observing a juvenile punch and injure an adult inside a residence, officer opened
the screen door and yelled, "Police!" When no one heard him, he stepped into the
kitchen and announced himself again. HELD: No violation of the knock-andannounce rule. The officer's announcement of his presence was at least equivalent to
a knock on the screen door. They were not required to await a response when no one
could hear them because of the ongoing tumult. (Brigham City (2006) 547 U.S. 398.)
See discussion of "knock and notice" in Section V, below.
To Prevent Destruction of Evidence
The "need 'to prevent the imminent destruction of evidence' has long been recognized as a
sufficient justification for a warrantless search" of a residence. (King (2011) 131 S.Ct. 1849.)
You may enter premises without a warrant or consent if you have (1) probable cause to
believe that there is crime-related evidence inside and (2) reason to believe that this evidence
may be removed or destroyed unless you enter, at least where a serious crime ("jailable
offense") is involved. (McArthur (2001) 531 U.S. 326; Welsh (1984) 466 U.S. 740;
Thompson (2006) 38 Cal.4th 811; Seaton (2001) 26 Cal.4th 598, 632; Williams (1989) 48
Cal.3d 1112, 1138-1139; Williams (1988) 45 Cal.3d 1268, 1298-1302.)
For example, warrantless entry of a suspected murderer's residence, 30 minutes after the
crime had been committed, was proper to prevent the destruction of evidence where officers
heard what sounded like objects being moved and no one answered the door. (Seaton (2001)
26 Cal.4th 598, 632; Parrison (1982) 137 Cal.App.3d 529, 535-536.) So was the entry of a
suspected felony drunk driver's residence 90 minutes after the offense to get a blood alcohol
sample. (Keltie (1983) 148 Cal.App.3d 773, 778-781--felony vehicular manslaughter; see
also Thompson (2006) 38 Cal.4th 811--entry for misdemeanor DUI in certain circumstances.)
Note:
Although the decision does not affect the admissibility of evidence in
California courts, the Ninth Circuit in a 42 USC § 1983 case has rejected
Thompson as valid authority for a warrantless entry. (See Hopkins (9th Cir.
2009) 573 F.3d 752, 772.) Hopkins does not address the separate issue of hot
pursuit of an arrestee fleeing from an officer into a residence. Further, the
Supreme Court has since stated that Welsh did not hold that a warrantless
entry to arrest a misdemeanant is never justified. (Sims (2013) 134 S.Ct. 3-"we did not lay down a categorical rule for all cases involving minor offenses
. . . .")
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And if you have entered legally on the basis that one or more persons inside may be destroying
evidence, it is also proper for you to "sweep" the entire premises to make sure that this is not
happening. (Seaton (2001) 26 Cal.4th 598, 632.)
It is the urgency of preventing the evidence from being destroyed or otherwise disappearing that
provides the exigency allowing the warrantless entry. This means that you may have to show
there was not enough time to get a warrant--possibly even a telephonic one. (Pen. Code, § 1528,
subd. (b).) (See Quackenbush (1996) 41 Cal.App.4th 1301, 1307; Tarazon (9th Cir. 1993) 989
F.2d 1045, 1050.) Otherwise, without this type of time pressure, the warrantless search or seizure
would be illegal.
Example:
Warrantless entry to seize drugs was improper where it did not appear that anyone was
home, there was no evidence of danger to the officers who were securing the premises
from outside, and they had no information that anyone in possession of the contraband
was aware that the police were hot on their trail. (Koch (1989) 209 Cal.App.3d 770.)
Some years ago, the U.S. Supreme Court held that this exigency, i.e., the need to prevent the
destruction of evidence, would not justify a warrantless entry where the offense is merely civil in
nature. (Welsh (1984) 466 U.S. 740.) Relying on Welsh, some lower courts applied the same
reasoning to other kinds of "less serious" infractions and misdemeanors.
More recently, however, the U.S. Supreme Court explained that the key is whether the offense is
"jailable." If it is not, then the Welsh rationale probably applies. On the other hand, if the offense
is jailable and there is a strong possibility that evidence will be lost unless the police take action,
then you may freeze the situation, either by preventing anyone from entering while you obtain a
warrant or, if someone is inside and knows of your presence, by entering and securing the
premises. (McArthur (2001) 531 U.S. 326--jailable offense of possession of marijuana;
Thompson (2006) 38 Cal.4th 811--DUI [identifying DUI as a serious, jailable offense]; Hampton
(1985) 164 Cal.App.3d 27, 31-35--misdemeanor DUI.) In California, probable cause that
someone inside a residence is in possession of less than an ounce of marijuana will not provide
grounds for a warrantless entry. (Hua (2008) 158 Cal.App.4th 1027, 1030.)
Example:
Responding to a "noise disturbance," officers smelled the distinct odor of burnt marijuana
and observed someone inside Hua's apartment smoking what appeared to be a marijuana
cigarette. Although Hua refused consent to enter the apartment, officers entered, claiming
exigency based on the potential destruction of evidence. They found 46 marijuana plants
and a cane sword. HELD: Because possession of less than 28.5 grams of marijuana is a
nonjailable minor offense, "a finding of exigent circumstances is categorically precluded"
when that is the only offense supported by probable cause. (Hua (2008) 158 Cal.App.4th
1027, 1030.)
Example:
LAPD responded to a report of a hotel burglary and were directed to a room where
security personnel thought the suspects might be staying. From outside the door, the
officers noticed a strong smell of marijuana, which was stronger when a woman answered
the door. After the officers asked everyone to step out of the room, they conducted a
protective sweep and observed in plain view evidence from the burglary. HELD: The
entry was not justified by any exigency, such as a belief that evidence of a jailable offense
would be destroyed. The officers had no reason to believe that the defendants were in
possession of more than 28.5 grams of marijuana. (Torres (2012) 205 Cal.App.4th 989.)
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Example:
An informant made a controlled buy of heroin from Ellers at Ellers' home and saw others
doing the same thing. Afterwards, officers met and spent 10 to 15 minutes planning what
to do. They returned, entered and made a warrantless arrest. HELD: The entry was
illegal. Heavy traffic, without more, did not justify immediate action, and there was
adequate time to get a warrant. (Ellers (1980) 108 Cal.App.3d 943.)
Example:
Under specific circumstances, officers could enter residence to arrest a misdemeanor DUI
suspect who had immediately gone inside after driving and appeared uncooperative in that
he attempted to evade contact with the officers who could see and hear him inside the
residence and attempted to flee through the back door. NOTE: The California Supreme
Court specifically declined to approve warrantless entries for the apprehension of all
misdemeanor DUI suspects. (Thompson (2006) 38 Cal.4th 811.)
Example:
The location of a large undercover drug buy from a major supplier changed unexpectedly
from a vehicle that was under surveillance to an apartment where several suspects were
present. Because a major crime was in progress, and because there was a strong
likelihood that evidence and suspects would disappear during any delay, the entry was
justified. (Valencia (1987) 191 Cal.App.3d 1483.)
Example:
Officers investigating a "brandishing" report were told by the victim that Mitchell had
threatened his life with a shotgun. The officers found Mitchell sitting on his porch, drunk.
He admitted having pointed his gun at the neighbor, said it was inside, and, at the officers'
request, went in to retrieve it. Under these circumstances, it was proper for the officers to
accompany Mitchell inside, where they observed other contraband in plain view.
(Mitchell (1990) 222 Cal.App.3d 1306, 1314.)
Example:
An arrested cocaine seller agreed to lead police to his supplier. He arranged a purchase by
telephone and then went inside a business while agents waited nearby. When he came out
after agreeing on a price, he told officers the sellers would become suspicious if he did not
return immediately with the money ($8,500), so the officers entered and arrested the
suppliers. HELD: The warrantless entry was proper because there was no time to obtain
even a telephonic warrant. "Irregularities in drug transactions which could cause a
supplier to suspect police action and destroy evidence or prepare to defend a residence are
sufficient to constitute exigent circumstances." (Tarazon (9th Cir. 1993) 989 F.2d 1045.)
Note:
Once you have a situation under control, it is normally better to secure the
premises (from outside, when possible) and obtain a search warrant. (Daughhetee
(1985) 165 Cal.App.3d 574; compare Segura (1984) 468 U.S. 796.)
Note:
The exigent circumstances exception has also been applied to an immediate
warrantless search of an arrestee's pager before the incoming numbers could be
deleted by new messages or the potential narcotics buyers could be unavailable to
receive return calls. (Bullock (1990) 226 Cal.App.3d 380.) The 2016 CalECPA
would, most likely, now require a search warrant for electronic pager data. (See
Ch. 6-XXII.)
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E.
3.15
"Creating" an Exigency
For many years, California and other jurisdictions developed a welter of rules prohibiting
warrantless entries if officers "created" or "manufactured" the exigencies that provided the
exception for the entry or search. In some jurisdictions, simply knocking on the door and
announcing "Police" was sufficient to create an exigency (destruction of evidence) and the
evidence would be suppressed.
In 2011, the U.S. Supreme Court finally resolved the issue, holding that the "exigent
circumstances rule applies when the police do not gain entry to premises by means of an
actual or threatened violation of the Fourth Amendment." (King (2011) 131 S.Ct. 1849.) The
Court emphasized that this is an objective test based on the facts known to the officers at the
time of the entry or search and that considerations of bad faith or subjective motivations are
improper.
For instance, where officers enter a residence based on the imminent destruction of evidence,
if the officers did not create the exigency by engaging in or threatening conduct that violated
the Fourth Amendment, a warrantless entry to prevent the destruction of evidence is lawful.
(King (2011) 131 S.Ct. 1849.)
What this means is that an entry or search based on exigent circumstances will not be
invalidated by the fact that the officers' conduct in some way "created" the exigency unless
the officers' actions precipitated the exigency and those actions either violated the Fourth
Amendment or threatened to do so. For example, announcing that you would break down the
door if occupants did not open the door voluntarily would improperly create an exigency.
Announcing "Police" and then hearing the sounds of evidence being destroyed before further
announcing that you would be making entry (i.e., announcement made after the exigency
arose) is valid. (King (2011) 131 S.Ct. 1849.)
Example:
Attempting to locate a suspect fleeing from a controlled drug buy, officers banged on
an apartment door and announced, "Police!" As soon as they banged on the door, the
officers could hear people moving things around inside the apartment. The officers
believed that drug-related evidence was about to be destroyed. They announced that
they were going to "make entry" into the apartment, kicked in the door, and found
marijuana and cocaine. HELD: The officers did not engage in or threaten conduct in
violation of the Fourth Amendment to create an exigency. (King (2011) 131 S.Ct.
1849.) (Note that the Court assumed, without deciding, that an exigency--the
destruction of evidence by persons inside the apartment--existed.)
For the most part, King does away with much of the former case law on "creating" an
exigency. The following examples of police conduct would appear to comply with King.
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Example:
Following an armed robbery of a pharmacy, police obtained the license number of the
getaway car as well as descriptions of the robbery suspect and getaway driver. When
they arrived at the driver's residence 15 minutes later, they saw the vehicle and the
driver outside. While detaining (and arresting) the driver, they observed two more
suspects inside the house, watching. These exigencies ("hot pursuit," imminent
destruction of evidence, firearm use) justified (1) entering the home without a warrant
and (2) securing it until a warrant could be obtained. The court stressed that the
emergency (discovering the driver outside) had not been "created" or "orchestrated"
by the officers and that the officers had entered the house because of the emergency.
(Daughhetee (1985) 165 Cal.App.3d 574; see also Elizabeth G. (2001) 88 Cal.App.4th
496.)
Example:
Officers received a tip from a reliable informant that a certain man, driving a
described car, would deliver a pound of cocaine to a certain home within an hour. The
officers conducted surveillance and within 20 minutes observed Mendoza arrive in the
described car and enter the house, carrying the described handbag. When another man
standing in the entryway saw the officers, he yelled and ran inside. The officers
followed him in and recovered the cocaine. The court held that the entry was legal: it
was not a "self-created" emergency. (Mendoza (1986) 176 Cal.App.3d 1127.)
F.
Crime Scenes
You may "search" crime scenes without a warrant, but only if a true exigency or emergency
exists. (Cain (1989) 216 Cal.App.3d 366.)
1.
Homicide Scenes
There is no such thing as a blanket "murder scene exception" to the warrant requirement. Of
course, if you reasonably believe that someone is in need of immediate aid, or if you are
looking for possible other victims or the killer on the premises, you may enter without a
warrant. Otherwise, a warrant is required. (Flippo (1999) 528 U.S. 11, 13-14; Mincey (1978)
437 U.S. 385, 392; McDowell (1988) 46 Cal.3d 551, 563-564; Macioce (1987) 197
Cal.App.3d 262, 272.)
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Example:
Note:
3.16a
Mincey shot and killed a narcotics agent during a drug buy at Mincey's apartment.
After Mincey was arrested and the premises secured, detectives made an exhaustive,
detailed, warrantless search for the next four days, seizing about 200-300 objects. The
Supreme Court suppressed all evidence seized after the scene had been secured.
(Mincey (1978) 437 U.S. 385; see also Flippo (1999) 528 U.S. 11.)
In the retrial, much of the "suppressed evidence" was admissible because the
officers had taken pictures of everything in plain view "during the exigency."
Example:
An officer responded to a report of "shots fired" at Apartment 5 of an apartment
complex. The officer saw blood leading from the door of Apartment 5 to the laundry
room where he discovered the dead victim. A little later, other officers responded and
began a search for evidence that might lead to immediate apprehension of the
murderer. The officers found contraband and a vehicle registration slip in the name of
M. Amaya, Jr. The search was proper and the evidence was admissible. (Amaya
(1979) 93 Cal.App.3d 424.)
Example:
Lower lived with Bobbi and her baby. One night the baby was crying, so Lower tied
the baby's hands and legs behind him and placed him face down. Later the baby
suffocated in his vomit. When the baby died, Lower called authorities. Officers
arrived, and they seized crime-related evidence in plain view. The court found the
immediate seizure proper under the emergency doctrine. (Lower (1979) 100
Cal.App.3d 144.)
Note:
It is "safer" to seize only evidence that may dissipate (vomit, blood, etc.) and
to get a warrant for the rest.
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2.
SEARCH AND SEIZURE - PREMISES
Clandestine Drug Labs
Courts have reached different results on the question of whether discovery of a PCP "lab" will
justify a warrantless entry. In one case, the court viewed the smell of ether--and even of PCP
--as just contraband. It held that the plain smell of contraband without evidence of the
element of imminent danger did not provide a sufficient basis for entering the premises
without a search warrant. (Dickson (1983) 144 Cal.App.3d 1046; Blackwell (1983) 147
Cal.App.3d 646; see also Baird (1985) 168 Cal.App.3d 237, where the officers' actions,
including a five-hour delay, belied their concern about an imminent explosion.)
In a similar situation, however, other courts have reached the opposite conclusion, probably
because the officers acted truly concerned (e.g., called the fire department or evacuated
neighboring houses) and gave testimony stressing the danger involved, i.e., the risk of
explosion if ether fumes were to contact flame or other heat source. (Stegman (1985) 164
Cal.App.3d 936; Patterson (1979) 94 Cal.App.3d 456; Messina (1985) 165 Cal.App.3d 937;
Ojeda (9th Cir. 2002) 276 F.3d 486, 489-490; Cervantes (9th Cir. 2000) 219 F.3d 882.)
The California Supreme Court reviewed most of these cases in Duncan (1986) 42 Cal.3d 91
and concluded "there is no absolute rule that can accommodate every warrantless entry into
premises housing a drug laboratory." The emergency nature of each situation must be
evaluated on its own facts. The Court did find considerable suspicion in the strong smell of
plain ether coming from a residence and made clear that police are justified in investigating
such circumstances further.
The key is for the officer's actions to be consistent with his motive of preserving life or
property. (Duncan (1986) 42 Cal.3d 91; Osuna (1986) 187 Cal.App.3d 845.)
Also, if you expect "exigent circumstances" to justify a warrantless entry, you will have to
convince the court that it was reasonable to anticipate that an injury might have occurred
before a search warrant--even a telephonic one--could have been obtained. (Blackwell (1983)
147 Cal.App.3d 646.)
Once you have entered and controlled the situation, remember that if you leave, you will need
a warrant to re-enter and conduct a search (Blackwell (1983) 147 Cal.App.3d 646) unless the
emergency is still continuing (Duncan (1986) 42 Cal.3d 91). For instance, if you were unable
to turn off the furnace the first time, a subsequent warrantless re-entry to perform that task
would still be justified. (Stegman (1985) 164 Cal.App.3d 936; Abes (1985) 174 Cal.App.3d
796.)
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3.
3.17
Arson Scenes
After a fire has been put out, officials may enter or remain inside a reasonable period of time
to investigate the cause. This may even include a "reentry" if it is made within a few hours
and the interruption was necessitated by darkness, smoke, gases, the need to summon police
to investigate a possible drug laboratory, or some other condition that made an immediate
investigation impractical. (Tyler (1978) 436 U.S. 499; Lucero (1988) 44 Cal.3d 1006;
Cleaver (1979) 24 Cal.3d 297; Avalos (1988) 203 Cal.App.3d 1517.)
However, if a more substantial period of time goes by, and a reasonable expectation of
privacy still exists or is asserted in the fire-damaged premises (e.g., it is a private residence
with personal belongings and the owners have boarded it up), the original "emergency" will
cease to exist, and you will need a warrant or consent (preferably both) before searching
further. (Glance (1989) 209 Cal.App.3d 836.)
An administrative warrant will suffice if the primary object of the search is to determine the
cause and origin of the fire. However, a criminal search warrant, obtained upon a showing of
probable cause, is required if the primary object of the search is to gather evidence of criminal
activity. (Clifford (1984) 464 U.S. 287.)
4.
Other Scenarios
A police standoff outside a private residence is a seizure of the resident who refuses to
surrender, and the warrantless seizure will be judged according to the exigencies of the
situation. Officers actively engaged in attempting to take the suspect into custody are not
required to obtain an arrest warrant. (Fisher (9th Cir. 2009) 558 F.3d 1069, 1071.) Similarly,
an ongoing hostage situation is an exigency excusing the warrant requirement. (MancinasFlores (9th Cir. 2009) 588 F.3d 677, 687.)
Example:
Fisher was watching the World Series, drinking two cases of beer, and cleaning his 18
World War I and II rifles in his apartment. Still intoxicated hours after the game,
Fisher took one of his rifles and confronted a security guard. San Jose police officers
responded to the guard's report and set up a perimeter around the complex. The lead
officer attempted to talk to Fisher, who admitted having the 18 rifles, and a tactical
negotiator was called in. During the standoff that lasted over 12 hours, Fisher was
observed pointing weapons at officers and loading several magazines and strategically
placing the rifles around his apartment. After more than 60 officers had been
deployed, Fisher agreed to come out and he was taken into custody outside his
apartment. Fisher claimed that the situation had calmed down at about 6:30 in the
morning and the officers on the scene should have obtained an arrest warrant after the
exigency had dissipated. HELD: The entire standoff was an "uninterrupted, fluid
engagement between Fisher and the police," and the police were not required to obtain
a warrant for his arrest. (Fisher (9th Cir. 2009) 558 F.3d 1069, 1076-1077.)
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V.
SEARCH AND SEIZURE - PREMISES
FORCIBLE ENTRY OF PREMISES/"KNOCK AND NOTICE"
If certain "knock and notice" requirements are met, you may legally break in or force your
way into premises (usually a home) to make an arrest (Pen. Code, § 844), to execute a search
warrant (Pen. Code § 1531; Uhler (1989) 208 Cal.App.3d 766), or, assuming exigent
circumstances exist, to conduct a warrantless investigation (Miller (1999) 69 Cal.App.4th
190, 200-201--possible child neglect/abuse).
A "forcible" entry may be as violent as breaking down a door or as nonviolent as walking
through a closed, unlocked door. (Sabbath (1968) 391 U.S. 585; Hoag (2000) 83 Cal.App.4th
1198, 1207.) Indeed, unless you have "consent," the knock/notice requirements apply even
when you enter premises through an open door. (Bradley (1969) 1 Cal.3d 80, 87; Hoxter
(1999) 75 Cal.App.4th 406, 410-411; Zabelle (1996) 50 Cal.App.4th 1282, 1286.)
A.
Purpose of the Requirements
The general purpose behind the "knock and notice" requirements is to protect the privacy of a
person in his home, as well as any others who might be present; to minimize the possibility of
a violent confrontation between police and private citizens that might occur if the police made
sudden, surprise, unannounced entries; and to minimize unnecessary damage to private
property. (Hoag (2000) 83 Cal.App.4th 1198, 1203, 1211; Jacobs (1987) 43 Cal.3d 472;
Peterson (1973) 9 Cal.3d 717, 723; Aguilar (1996) 48 Cal.App.4th 632, 637; see Hudson
(2006) 547 U.S. 586, 594.)
B.
The Requirements Themselves
1.
For Both Arrests and Searches
Even though the statutes governing "knock and notice" for arrests (Pen. Code, § 844) and
search warrants (Pen. Code, § 1531) are not identical, they are treated as "functional
equivalents" and are governed by the same policy considerations for most purposes. (Bittaker
(1989) 48 Cal.3d 1046.) Basically, they require you to convey to the occupant who you are
and what your purpose is. Specifically, before you enter (not while you enter) you must:
-
knock (or do something else that will alert the people inside to your presence);
-
identify yourself as a police officer;
-
explain your purpose;
-
demand entry and then wait a reasonable period before entering.
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Technically, there is no "demand" requirement when entering to execute a search warrant.
(Gallo (1981) 127 Cal.App.3d 828, 838.)
Similarly, there is no "refusal" requirement before entering to make an arrest. (Schmel (1975)
54 Cal.App.3d 46, 50-51.)
However, all the cases do not agree about these distinctions. (See Hirsch (1977) 71
Cal.App.3d 987.) Therefore, it is probably best to use just one procedure when "announcing"
in either situation.
Example:
2.
Knock loudly on the door and then say in a loud voice, "Police officers. Open up. We
have a search warrant [or an arrest warrant] for 'X'."
For Arrests Only--Belief Suspect Is Inside
Before forcing entry to make an arrest, there is one additional requirement under the statute.
You must have "reasonable grounds" for believing that the person you want to arrest is inside.
(Pen. Code, § 844; Wader (1993) 5 Cal.4th 610, 632; Hoxter (1999) 75 Cal.App.4th 406,
414.) "Reasonable grounds" means enough factual information to make a person of ordinary
caution believe the suspect is inside. (Jacobs (1987) 43 Cal.3d 472, 479.)
Example:
You have been maintaining surveillance on the house. You know what car the suspect
drives, you know that he is the only one who drives it, and you see it parked in front
when you approach. This should provide "reasonable grounds" for believing he is
inside.
Remember also that, as a general rule, the "knock and notice" requirements apply when you
are entering to arrest, regardless of whether or not you have an arrest warrant. (Hoxter (1999)
75 Cal.App.4th 406, 410; Wilkins (1993) 14 Cal.App.4th 761, 769.)
3.
For Searches Only--The Wait/Refusal Requirement
When executing a search warrant, there is the specific requirement that before forcing entry
you must be refused admittance. Sometimes it can be difficult to figure out what constitutes a
refusal, although an unreasonable delay in responding does qualify as one. (Hoag (2000) 83
Cal.App.4th 1198, 1207.)
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When the refusal is verbal ("It's the cops! Let's get out of here!"), there's usually no problem.
Likewise, a refusal based on conduct (the resident goes for a weapon; starts to destroy
evidence; you hear "retreating footsteps") is usually easy enough to recognize.
However, many times the refusal takes place just by the passage of time, without any
response from inside. The Supreme Court has intentionally refused to set a minimum wait
time. (Hudson (2006) 547 U.S. 586.) How long you must wait before this type of refusal has
legally occurred will depend on all the circumstances. Around one minute would be a "safe"
period in most cases (see Taylor (9th Cir. 2001) 239 F.3d 994, 999), but it can be less,
especially if you know that someone is inside. In a drug case, a reasonable wait time is "how
long it would take to dispose of the suspected drugs." (Hudson (2006) 547 U.S. 586, 590;
Byers (2016) 6 Cal.App.5th 856.)
Example:
Officers knocked and announced three times, then entered about 30 seconds later, but
only after people they could see inside had made no response. The forcible entry was
proper. (Gallo (1981) 127 Cal.App.3d 828; McCarter (1981) 117 Cal.App.3d 894.)
Example:
Officers knocked and announced at a bookmaking establishment where they knew
people inside were committing illegal acts. Their forced entry, after waiting 20
seconds without a response, was legal. (Elder (1976) 63 Cal.App.3d 731, 739.)
Example:
A 20-second delay after knocking and announcing was not long enough to justify
forcible entry into a residence at 11:00 p.m. where officers did not know if anyone
was home, heard nothing, and had "no information whatsoever" on which to base a
belief that they were being refused entry. (Jeter (1983) 138 Cal.App.3d 934; see also
Banks (9th Cir. 2002) 282 F.3d 699, 703-705.)
Example:
A five-second delay after a female voice answered "Who's there?" was not long
enough to justify forcible entry where officers were executing a narcotics search
warrant at 1:00 a.m., were dressed in civilian clothes, heard no other sounds after
announcing their identity, and failed to demand entry. (Gonzalez (1989) 211
Cal.App.3d 1043.)
Example:
Officers, who may have known that a light was turned on about a half hour earlier in
an upstairs apartment, waited 18 seconds after knocking and announcing at 7:45 a.m.
before forcing entry. During this time, they heard some nondescript "movement" to
which they did not attach any particular meaning. HELD: Although it was a close
case, the 18-second delay was not enough time to constitute a "refusal." (Trujillo
(1990) 217 Cal.App.3d 1219.)
Example:
A 15-20 second delay was insufficient, following proper knock and notice at 7:00
p.m., with no reason to think anyone was home. (Hoag (2000) 83 Cal.App.4th 1198,
1207-1208.)
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Example:
A five-second delay was insufficient, following proper knock and notice at drug
dealer's home at 7:00 a.m., with no sounds heard and no specific indications he was
armed. (Granville (9th Cir. 2000) 222 F.3d 1214, 1218.)
Example:
Officers knocked and announced loudly at a small apartment they believed was
occupied, then waited 15-30 seconds before forcing entry after getting no response.
HELD: Their actions were legal. (Nealy (1991) 228 Cal.App.3d 447, 450.)
C.
Applicable Situations
If you bear in mind the purpose behind the "knock and notice" requirements (i.e., to protect
privacy and avoid surprise confrontations), it will be easier to understand and remember why
the requirements apply in the following situations.
Note:
1.
The following situations assume there are no exigent circumstances, consent,
or other exception to the "knock and notice" requirements.
Open Outer Doors
You may not enter someone's dwelling--which includes a hotel room (Bennett (1998) 17
Cal.4th 373, 384)--even through an open door without knocking and announcing. (Bradley
(1969) 1 Cal.3d 80, 87; Hoxter (1999) 75 Cal.App.4th 406, 410-411; Zabelle (1996) 50
Cal.App.4th 1282, 1286.) However, the courts are less likely to require strict compliance
with the statutory requirements when the door is already open. (Mendoza (1986) 176
Cal.App.3d 1127.)
Note:
2.
Federal law is different. Officers entering through an open door are not
required to knock and announce under 18 U.S.C. § 3109, due to the specific
language of that statute. (Phillips (9th Cir. 1998) 149 F.3d 1026, 1029.)
Closed Inner Doors
Penal Code section 1531 specifically mentions "inner" doors, and there are some older cases
that hold that you must comply with the "knock and notice" requirements before entering, for
example, a closed bedroom door in a private residence, even though you already "knocked
and announced" at the front or "outer" door. The appellate courts are almost evenly split on
the question. (Mays (1998) 67 Cal.App.4th 969, 974 [see lists of cases].)
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However, more recent and better-reasoned cases have interpreted section 1531 to require
compliance with "knock/notice" only on the outer door, except in unusual situations, such as
where the residence is unusually large, or the outer door does not provide access to the place
to be searched under the warrant, or the warrant authorizes a search only of the particular
inner room. (See, for example, Pompa (1989) 212 Cal.App.3d 1308.)
Thus, in the typical situation, there is no need to knock and/or announce again before
opening, or "breaking into," a closed interior door. "We construe the language of section
1531 to require compliance therewith at the point of entry to a house, but not at inner doors."
(Howard (1993) 18 Cal.App.4th 1544, 1547; accord, Aguilar (1996) 48 Cal.App.4th 632, 639;
and Mays (1998) 67 Cal.App.4th 969, 974-976.)
Likewise, federal cases agree that knock/notice is required only on the outer door where entry
is originally made. (Crawford (9th Cir. 1981) 657 F.2d 1041, 1045.)
Example:
Officers executing a search warrant at a residence one morning knocked, announced
repeatedly, and were "refused" admittance by the lack of any response within a
reasonable period of time even though a woman at the front window had seen them
approaching. They opened the unlocked front door, found the woman and detained
her in one room, and continued down the hallway to a closed bedroom door. There
they knocked, stated "Police, search warrant," and simultaneously opened the door
and entered, without waiting for any "refusal." HELD: "Having fully complied with
section 1531 at the outer door, the officers were under no constitutional or statutory
obligation to repeat the knock-notice litany once inside." (Howard (1993) 18
Cal.App.4th 1544, 1555.)
Example:
Police went to an apartment to execute arrest warrants for Aguilar and Zaragosa.
Having knocked and announced at the front door, they were not required to do so
again inside at a closed bedroom door before entering the bedroom. (Aguilar (1996)
48 Cal.App.4th 632, 639.)
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3.
3.21
Other Structures on the Premises
You must knock, announce, and wait before forcibly entering other structures on the
premises, such as sheds, garages, etc., even if detached from the house, unless they are clearly
"abandoned" or otherwise clearly show no private character, i.e., show no evidence of being
used for the comfort and convenience of the household. (Arketa (1970) 10 Cal.App.3d 122
["knock and notice" applied to lighted wooden shed 25 yards from residence]; Franco (1986)
183 Cal.App.3d 1089 [plywood and chicken wire "hut" required knock/notice to serve arrest
warrant]; Bruce (1975) 49 Cal.App.3d 580 [opening the garage door to investigate chop shop
required knock/notice].)
4.
Entry for Another Purpose
Normally, you should also follow the "knock and notice" requirements before entering a
home for other purposes besides making an arrest or search. Such purposes might include:
-
to secure the premises (Machado (1975) 45 Cal.App.3d 316);
-
to evict a tenant (Jackson (1981) 117 Cal.App.3d 654); or
-
to conduct warrantless parole or probation searches (Freund (1975) 48 Cal.App.3d 49;
Rosales (1968) 68 Cal.2d 299).
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D.
SEARCH AND SEIZURE - PREMISES
Requirements Excused/Nonapplicable
In the following situations, compliance with the "knock and notice" requirements are either
excused or the statutes have no applicability.
1.
Consent Entry
Where consent to enter is given by a person who has authority to do so and who is present at
the residence, no compliance with "knock and notice" is necessary. (Satz (1998) 61
Cal.App.4th 322.) When consent is obtained from a co-occupant who is off the premises, the
regular knock/notice rules apply. (Byers (2016) 6 Cal.App.5th 856.)
2.
Public Places/Businesses
If the premises are open to the public, there is no privacy to protect or surprise to avoid, so the
requirements do not apply. (Maita (1984) 157 Cal.App.3d 309; Pompa (1989) 212
Cal.App.3d 1308.)
3.
Exterior Gates and Fences
"Knock and notice" requirements normally do not apply to exterior gates and fences, at least
where they are not an integral part of the house itself, there is no one present in the yard, there
is no buzzer, intercom, or other easy means of contacting the persons in the house, and/or
there is no purpose in attempting to comply until reaching the actual residence. (Mayer
(1987) 188 Cal.App.3d 1101; Bencomo (1985) 171 Cal.App.3d 1005.)
4.
Unoccupied Premises
When executing a search warrant, you need not comply with Penal Code section 1531 if you
can be sure no one is home. (Hart (1971) 21 Cal.App.3d 496.)
Note:
No such "excuse" exists for making arrests, because you may not forcibly enter
unless you already believe the suspect is inside.
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5.
3.22a
Premises Occupied by Trespasser/Burglar
If the premises are occupied only by someone who has no right to be there, such as a
trespasser or burglar, the "knock and notice" statutes do not apply. (Solario (1977) 19 Cal.3d
760.)
6.
Exigent Circumstances/Emergency
The "knock and notice" requirements are always excused if you have facts to show an
exigency, such as "hot pursuit." (Hoxter (1999) 75 Cal.App.4th 406, 411; Lavoyne M.
(1990) 221 Cal.App.3d 154, 158-159.)
Note:
An exigency that would excuse the "knock and notice" requirements would not
necessarily excuse the warrant requirement. (Dickson (1983) 144 Cal.App.3d
1046.)
A "no-knock" entry is justified if you have a "reasonable suspicion," based on the particular
facts of your situation, that knocking and announcing your presence "would be dangerous or
futile or that it would inhibit the effective investigation of the crime by, for example, allowing
the destruction of evidence." (Richards (1997) 520 U.S. 385, 395; Ramirez (1998) 523 U.S.
65, 70; Alaniz (1986) 182 Cal.App.3d 903 [destruction of evidence]; Mendoza (1986) 176
Cal.App.3d 1127 [same].) "Knock and announce" also is not necessary:
-
when circumstances present a "threat of physical violence" (Wilson (1995) 514 U.S.
927, 936) or
-
when facts make it reasonable for you to believe, in good faith, that compliance would
result in increased danger to you (Murphy (2005) 37 Cal.4th 490, 497; Mayer (1987)
188 Cal.App.3d 1101; Bynum (9th Cir. 2004) 362 F.3d 574, 580-582 [officers knew
suspect had at least one readily accessible firearm])or frustrate making the arrest by
allowing a fleeing, dangerous suspect to escape (Murphy (2005) 37 Cal.4th 490, 497;
Escudero (1979) 23 Cal.3d 800).
Only one of the grounds for failing to knock and announce need exist. (Hudson (2006) 126
S.Ct. 2159, 2163.) However, you cannot use generalizations or "common knowledge" in
support of noncompliance. (Richards (1997) 520 U.S. 385, 393.) For example, it is not
enough simply to believe that narcotics violators usually have guns and will use them on
police or that owners of guns will necessarily use them against approaching officers.
(Granville (9th Cir. 2000) 222 F.3d 1214, 1218; Neer (1986) 177 Cal.App.3d 991.) The fact
that officers are aware of "contemporaneous drug activity at the premises does not provide per
se justification for a no-knock entry." (Murphy (2005) 37 Cal.4th 490, 497.)
From the above circumstances, the likely destruction of evidence, even without additional
particularized information,
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can significantly shorten the time that you wait before forcibly entering a home. Waiting 15
or 20 seconds without a response before entry was reasonable based on the likelihood-exigent need--that the cocaine would be flushed away if officers did not immediately enter.
(Banks (2003) 540 U.S. 31, 41--"Police seeking a stolen piano may be able to spend more
time to make sure they really need the battering ram"; accord, Martinez (2005) 132
Cal.App.4th 233, 244--validity of the forced entry is "primarily determined by the purpose of
the search warrant and the nature of the evidence being sought"].)
In all cases, a lawful forcible entry requires specific facts or reasons relating to your situation
that show an apparent exigency.
Example:
Officers went to Richards' hotel room at 3:40 a.m. to execute a narcotics search
warrant. One officer, dressed as a maintenance man, knocked on the door and, in
response to a question from inside, stated that he was a maintenance man. Richards
then cracked open the door but, when he saw a second officer in uniform, quickly
slammed the door shut. The officers then forced entry without knocking and
announcing. The U.S. Supreme Court held that there could be no "blanket rule"
excusing the "knock and announce" requirements for a particular category of crime,
such as executing felony drug search warrants. However, the court found that the
circumstances which arose at the time of the execution here--namely, Richards'
apparent recognition of the officers, in combination with the easily disposable nature
of the drugs--were sufficient to excuse the announcement requirement. (Richards
(1997) 520 U.S. 385.)
Example:
A "no-knock" entry was justified by the circumstances that (1) a methamphetamine
sale had just occurred inside a probationer's residence, (2) officers could reasonably
infer that additional drugs were still in the residence, (3) the suspect was on probation
for a narcotics offense, and (4) immediately prior to entry officers had identified
themselves and announced their purpose of a probation search in a loud voice to a
person outside an open sliding glass door. (Murphy (2005) 37 Cal.4th 490, 492.)
Example:
Four officers approached a home at 8:30 p.m. to execute a search warrant. They
detained one suspect working in the front yard after yelling,
"We're the police department,
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don't move . . . we have a search warrant." The porch light was on, the front door was
open, and lights were on inside. One officer walked up to the closed screen door.
Inside, he could see a woman with a child sitting on a couch and a man standing in the
kitchen area. The officer identified himself as a police officer, stated that he had a
search warrant, opened the screen door and went inside. He believed the occupants
had heard both announcements and feared they would flee, destroy contraband or arm
themselves. The court ruled the entry illegal because there were insufficient facts to
claim that an emergency excused compliance with the "knock and notice"
requirements, which include a "refusal." (Neer (1986) 177 Cal.App.3d 991.)
Example:
It was proper for officers to enter a hotel room through its open door without
complying with knock and notice, and to walk up to a man who had his eyes closed
and was in an unusual position next to some heroin, since the officers could not see
what, if anything, he had in his hands, and waking him up from the doorway would
only have increased the potential for violence and peril to the officers. (Zabelle
(1996) 50 Cal.App.4th 1282, 1287.)
Example:
During several earlier searches, the defendant had always refused entry and attempted
to destroy contraband. Therefore it was proper for the officers, after knocking and
announcing "Sheriff's Department. We have a search warrant," to immediately force
entry, without any delay or refusal. (Alaniz (1986) 182 Cal.App.3d 903.)
Example:
Officers serving a warrant had been told by a confidential reliable informant that the
informant had personally seen the suspect habitually answer the door with a gun in his
hand. The court ruled that this was a sufficient reason for the officers to ignore the
"knock and notice" requirements. (Dumas (1973) 9 Cal.3d 871.)
Example:
The suspect's arrest record reflected a history of assaultive behavior, including a prior
fight with a police officer. These facts were ruled enough to bring the officers within
the "no knock" exception. (Henderson (1976) 58 Cal.App.3d 349.)
Example:
Noncompliance with refusal requirement was excused where defendant was known to
carry firearms and one officer noticed a weapon in defendant's hand when he opened
the blinds in response to their knock. (Scott (9th Cir. 1996) 74 F.3d 175, 177.)
Example:
"No knock" entry to execute a search warrant at a site of a suspected meth lab was
lawful because the officers had repeatedly announced over a public address system
that they had a warrant and they were reasonably concerned for officer safety because
one officer had observed an open flame near the window, the house was equipped
with security cameras and floodlights, and the windows were papered over. (Combs
(9th Cir. 2005) 394 F.3d 739.)
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Example:
Uniformed officers investigated a reported shooting, found a bullet hole and slug in
the doorjamb, and saw people inside running around. Officers knew the occupants
because of a prior shooting. The person answering the door refused entry, closed the
door, and pulled the drapes, but not before the officers saw a handgun on the kitchen
counter. Forced entry, without further knock and notice compliance, was proper.
(Galan (1985) 163 Cal.App.3d 786.)
Finally, it makes no difference whether you need to destroy or damage property (such as a
lock or window) to gain entry. There is no "higher standard" of exigency in such situations.
Rather, the required level of exigency is the same either way. (Ramirez (1998) 523 U.S. 65,
71.)
Remember, however, the "excessive or unnecessary" destruction of property may violate the
Fourth Amendment. And the violation may exist even though the fruits of the search
following the entry would not be subject to suppression. (Ramirez (1998) 523 U.S. 65, 71,
72, fn. 3 [requiring a "sufficient causal relationship between the breaking of the window and
the discovery of the guns to warrant suppression of the evidence"]; Ankeny (9th Cir. 2007)
502 F.3d 829, 837-838 [no causal connection between the discovery of the contraband and the
forcible manner of executing the warrant]; see Hudson (2006) 126 S.Ct. 2159, 2170.)
7.
Compliance Futile
A related exception excusing compliance is when it would be "futile," i.e., when no purpose
or reason to knock and announce exists because the occupant already knows your identity and
purpose and has indicated by his conduct at the premises that he is not going to cooperate.
(Richards (1997) 520 U.S. 385, 395; Mack (1984) 155 Cal.App.3d 666, 675.)
Example:
Officers went to a residence to investigate possible possession of kilos of marijuana.
As they approached, the occupant happened to come outside, yelled "Jesus, it's the
cops," and ran into the garage, slamming the door behind him. It was proper for the
officers to force entry into the garage without complying with "knock and notice"
requirements. (Bigham (1975) 49 Cal.App.3d 73; see also Mayer (1987) 188
Cal.App.3d 1101; Peterson (9th Cir. 2003) 353 F.3d 1045.)
Example:
There was strong evidence that a married couple was missing from their home or dead
or injured inside. Friends had knocked and received no response as recently as 20
minutes before the police arrived. Compliance with "knock and notice" was excused.
(Macioce (1987) 197 Cal.App.3d 262.)
Example:
Officers who knocked and announced their identity when executing an arrest warrant
were excused from announcing their purpose where, as the defendant passed by an
open window, they told him he was under arrest and grabbed him by the arm, and
where, given the nature of the crime and the knowledge that he carried weapons, any
delay would have been hazardous. (Bittaker (1989) 48 Cal.3d 1046.)
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8.
3.24a
Ruse Entry
You may use a false name or employ some other trick or ruse to obtain consent to enter if you
already have a judicially authorized right to enter, e.g., a search warrant. (McCarter (1981)
117 Cal.App.3d 894; Michaud (9th Cir. 2001) 268 F.3d 728, 733.)
"Officers who reasonably employ a ruse to obtain consent to enter a dwelling do not violate
Penal Code section 844 or 1531, even if they fail to announce their identification and purpose
before entering." (Kasinger (1976) 57 Cal.App.3d 975.)
Example:
E.
Officers with a warrant set off firecrackers to simulate gunfire, then asked the
occupants inside the "fortress-like" house to come outside to check their vehicle for
possible damage. Once the barricades were down, the officers explained their true
identity and purpose. The court held this ruse was reasonable under the circumstances
and actually helped fulfill the purpose of the statute by avoiding what otherwise would
clearly have been a violent confrontation. (Thompson (1979) 89 Cal.App.3d 425.)
Substantial Compliance
Sometimes a court will permit something less than strict or literal compliance with the "knock
and notice" requirements under the doctrine of "substantial compliance." (Uhler (1989) 208
Cal.App.3d 766.) This happens when a court believes that the policies and purposes of the
requirements have been essentially satisfied anyway. (Hoag (2000) 83 Cal.App.4th 1198,
1208; Mayer (1987) 188 Cal.App.3d 1101; Galan (1985) 163 Cal.App.3d 786.)
As has been pointed out, the "substantial compliance" doctrine has been used to cover two
slightly different situations: (1) to find no violation because the police conduct was so close to
literal compliance with the statutory requirements, and (2) to find that there has been a
violation of the requirements, but that it is excused because of substantial compliance. (Hoag
(2000) 83 Cal.App.4th 1198, 1213.)
Example:
Officers executing a search warrant knocked and announced, heard no response, and,
thinking there was no one inside, entered the unlocked front door after waiting 15-20
seconds. HELD: This delay before entering was too short to constitute a "refusal."
Therefore there was a violation of Penal Code section 1531. However, in light of all
the circumstances (namely, not believing anyone was inside, not physically damaging
any property, and not endangering any person), the overall police conduct was not
unreasonable under the Fourth Amendment. Therefore, the evidence found inside did
not need to be suppressed. (Hoag (2000) 83 Cal.App.4th 1198, 1211-1212.)
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Example:
In the front yard of the residence, officers informed the owner of their authority and
purpose. Without knocking, they then entered (without the owner) to search. The
court found substantial compliance since the purposes of the statute had been met.
(Maita (1984) 157 Cal.App.3d 309.)
Example:
Officers had a search warrant for a house where the front door was open and the
screen door closed. They made eye contact with the occupant (who was watching
television), knocked, announced, and then entered by way of the screen door. The
court found substantial compliance with the statute even though there had been no
"refusal." (Tacy (1987) 195 Cal.App.3d 1402.)
F.
Effect of Noncompliance
The United States Supreme Court has ruled that "knock and notice" requirements are part of
the "reasonableness" inquiry under the Fourth Amendment. (Wilson (1995) 514 U.S. 927,
930; Hoag (2000) 83 Cal.App.4th 1198, 1209.) However, a violation of a state's "knock and
announce" provisions in the service of a warrant will not result in the suppression of evidence.
(Hudson (2006) 126 S.Ct. 2159; see Frank S. (2006) 142 Cal.App.4th 145, 152--Hudson
applied to entry to arrest parolee.)
The "exclusionary rule" is inapplicable in such situations because the warrant authorized the
seizure of evidence: the entry, even if unreasonable in manner, did not bear upon the lawful
seizure of evidence under the warrant. Put another way, the seizure of evidence was not the
"fruit" of the unlawful entry--it was independently authorized by the warrant.
Example:
Michigan police failed to wait a sufficient period of time (only three to five seconds)
before entering Hudson's residence to execute a search warrant. All parties conceded
it was a premature entry. HELD: The "exclusionary rule" did not apply and the
evidence seized under the warrant could not be suppressed. The guns and the drugs
were the product of a search pursuant to a warrant, not "the fruit of the fact that the
entry was not preceded by 'knock and announce.'" The "knock and announce" rule
does not protect "one's interest in preventing the government from searching or taking
evidence described in a warrant." (Hudson (2006) 126 S.Ct. 2159.)
Hudson did not, however, abolish "knock and notice" requirements. The "knock and
announce" rule remains a "command" of the Fourth Amendment. (Hudson (2006) 126 S.Ct.
2159, 2162; Wilson (1995) 541 U.S. 927, 931-936.) What Hudson clarified was the remedy
to be applied to a violation of knock/notice. Officers must still comply with knock/notice.
The Hudson court made it clear that the failure to comply with "knock and announce"
requirements would be a basis for a 42 U.S.C. § 1983 civil rights action. The court identified
civil liability, rather than the suppression of evidence, as an "effective deterrent" to
knock/notice violations. (Hudson (2006) 126 S.Ct. 2159, 2166-2168.)
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VI.
3.25
CONSENT
Generally, the Fourth Amendment prohibits the warrantless entry of private premises, either
to make an arrest or to conduct a search. (Payton (1980) 445 U.S. 573, 583-590; Frye (1998)
18 Cal.4th 894, 989.)
However, you may enter premises without a warrant, probable cause, or exigent
circumstances if you have obtained valid consent. (Rodriguez (1990) 497 U.S. 177, 181; Frye
(1998) 18 Cal.4th 894, 989; Memro (1995) 11 Cal.4th 786, 847; Oldham (2000) 81
Cal.App.4th 1, 9.) The Supreme Court has recognized that "'[c]onsent searches are part of the
standard investigatory techniques of law enforcement agencies' and are 'a constitutionally
permissible and wholly legitimate aspect of effective police activity.'" (Fernandez (2014) 134
S.Ct. 1126, 1132.)
If you have valid consent, you are entitled to seize contraband or fruits or instrumentalities of
a crime, as well as any other item you reasonably believe will aid in the suspect's
apprehension or conviction. (Bittaker (1989) 48 Cal.3d 1046.)
However, to be valid, the consent must be:
-
voluntary, i.e., not "coerced" by force, threats, tricks, promises, or the exertion of
authority; and
-
obtained from a person with authority, or "apparent" authority, to give that consent.
(Rodriguez (1990) 497 U.S. 177, 186.)
Consent that immediately follows an illegal entry or search presents a separate problem if a
court determines that it was "inextricably bound up" with unlawful conduct. (Haven (1963)
59 Cal.2d 713, 719; Werner (2012) 207 Cal.App.4th 1195, 1211.) In addition, even with a
valid consent, the search you conduct will be invalid if it exceeds the scope (limits) of the
consent given.
Note:
The law relating to consent searches is basically the same whether the area to
be searched involves a person, premises, vehicle, or container. To avoid undue
repetition, the subject is discussed at length in this chapter only.
A.
Preliminary Considerations
1.
Always Seek Consent
YOU SHOULD ALWAYS ASK FOR CONSENT TO SEARCH EVEN WHEN YOU
HAVE OTHER AUTHORITY FOR THE SEARCH. It can never hurt, and it may help a
great deal, if other grounds (e.g., exigency or warrant) are ruled insufficient. (See Le (1985)
169 Cal.App.3d 186.)
Example:
A homeowner calls in to report a burglary. After entry of the victim's home, the
officers "sense" that the victim may be dealing in narcotics. The officers request and
obtain permission to search anywhere in the house. They discover crime-related
evidence, which will be admissible on the independent ground of consent.
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Example:
Note:
2.
Officers serve a search warrant and find a lot of evidence. Later, the warrant is ruled
defective and all of the evidence is suppressed. A simple request for consent to search
prior to showing the resident the warrant might have saved all of the evidence.
Be careful about showing your warrant before asking for consent. If you do
and the warrant is later ruled defective, the consent will also be invalid.
(Baker (1986) 187 Cal.App.3d 562.)
Do Not Seek Consent Instead of a Warrant
There is a risk associated with relying solely on an attempt to obtain consent rather than first
obtaining a warrant and then also asking for consent. If you have probable cause to search a
house but try to obtain consent rather than a warrant to search, you will be taking the risk that
the resident will refuse to allow your search. If she does, the evidence may be destroyed
while you are obtaining the warrant.
Furthermore, courts have ruled that in such circumstances you may not secure or "freeze" the
premises because you "created" the exigency. (Shuey (1973) 30 Cal.App.3d 535; but see
Ojeda (9th Cir. 2002) 276 F.3d 486, 489-490--limiting this doctrine to "bad faith" situations.)
Additionally, a warrant allows you to detain persons who are on the premises and consent to
search does not. (Shields (1988) 205 Cal.App.3d 1065.)
Therefore, if you have probable cause to search a residence (and no exigent circumstances
exist), you should get a warrant first and then seek consent.
3.
Indications of Consent--Express and Implied
Consent to enter or to search must be clear and unequivocal. However, such consent can be
either "express" or "implied." (Frye (1998) 18 Cal.4th 894, 990.)
Express consent means that the consenter has agreed to the entry or search verbally, for
example, by using words or phrases such as "Yeah" (James (1977) 19 Cal.3d 99, 113), "Go
ahead" (Carrillo (1966) 64 Cal.2d 387, 393), or "Do what you want" (Dahlke (1967) 257
Cal.App.2d 82, 87).
Consent to enter or search may also be implied, that is, given by means of physical conduct or
acts, such as pointing or waving. It will be easier to establish consent in court, however, if
you obtain express verbal (or, better yet, written) consent, if possible.
Example:
Silence in response to an officer's request to enter or search will not constitute an
implied consent because every person has the right to remain silent and to refuse
consent. (Crofoot (1981) 121 Cal.App.3d 717, 725.)
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3.26a
Example:
There was a valid implied consent to enter where officers, standing outside the open
door of the apartment, asked the victim who had injured her and she stepped back,
pointed to defendant lying on the couch inside, and let the officers step inside to see
who she was pointing at. (Frye (1998) 18 Cal.4th 894, 990; see also Pavao (9th Cir.
2002) 307 F.3d 915, 920 [the occupant fully opening the door and stepping back out
of the doorway was an implied invitation to enter the home].)
Example:
Following his lawful arrest outside his condo, Rosi requested permission to change
out of his ski clothes into jeans, and provided officers with a key so he could do so.
The officers agreed and accompanied Rosi inside where incriminating evidence was
discovered. HELD: The warrantless entry was valid pursuant to Rosi's implied
consent. (Rosi (9th Cir. 1994) 27 F.3d 409, 412.)
Example:
Officers appeared at what they thought was a suspect's home and followed him inside
as he retreated without obtaining his express or even implied consent. HELD: The
entry was illegal. "In the absence of a specific request by police for permission to
enter a home, a defendant's failure to object to such entry is not sufficient to establish
free and voluntary consent. We will not infer both the request and the consent."
(Shaibu (9th Cir. 1990) 920 F.2d 1423, 1428.)
B.
Voluntariness of Consent
In order for a consent entry or search to be valid, the consent must be voluntary, i.e., the
product of a free will. It cannot be given in submission to your authority, express or implied.
In other words, the consent must be "uncontaminated" by any duress, coercion, intimidating
conduct, or other "pressure tactic," whether direct or indirect. The voluntariness of consent,
like the voluntariness of a statement, is mainly dependent upon the conduct and demeanor of
the officer. If you behave as if compliance with your request is required, the consent will not
be voluntary. (Gonzales (9th Cir. 1992) 979 F.2d 711, 713; Bostick (1991) 501 U.S. 429,
437-438.) Additionally, the condition, conduct and/or demeanor of the "consenter" can be
extremely important in how a court evaluates voluntariness.
Whether consent is voluntary or the product of coercion with be determined based on the
totality of circumstances. (Schneckloth (1973) 412 U.S. 218; James (1977) 19 Cal.3d 99;
Llamas (1991) 235 Cal.App.3d 441, 447.) The key is whether a reasonable person (an
innocent person--not someone who is carrying contraband) would feel free to decline your
request. The fact that someone is arrested or detained prior to consenting does not invalidate
consent. (Byers (2016) 6 Cal.App.5th 856.)
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Example:
Officer illegally stopped defendant's car, found him to be under the influence of drugs,
made a custodial arrest, then obtained consent to search the suspect's motel room.
HELD: The consent was valid, "an independent act of his free will," and was not
tainted by the illegal stop. (Llamas (1991) 235 Cal.App.3d 441, 447.)
Example:
Four INS agents confronted a suspect at the stairwell to his apartment. One agent's
gun, although holstered, was plainly visible. Saying "Let's go into your apartment,"
the agents followed the suspect to the door, where the suspect hesitated and asked if
they had a warrant. He was told, "We don't need a warrant to talk to you." HELD:
There was no voluntary consent to enter. "Consent is ineffective if it follows an
express or implied claim by the police that they can immediately proceed to make the
search [or entry] anyway." (Orhorhaghe (9th Cir. 1994) 38 F.3d 488, 500-501.)
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1.
3.27
The Officer
You can usually control the voluntariness of consent by proper conduct and demeanor when
seeking consent to search. Avoid any type of coercion, compulsion, or assertion of authority.
a.
Force (Physical)
By exhibiting force while seeking consent, you take an enormous risk that the consent will be
ruled involuntary.
(1)
Weapons
The fact that weapons were not drawn before or during the consent is a factor courts
consider as an indication of voluntariness. (Schoennauer (1980) 103 Cal.App.3d 398.)
On the other hand, it is very difficult to show the consent was voluntary if you request
it with your gun drawn.
Example:
Officers, with their guns drawn, arrested a narcotics seller in his front yard at 5:00
p.m. Then one officer approached the open front door of the residence and, through
the closed screen door, explained to the defendant's common law wife what was going
on and asked if he could come inside and search. The officer still had his gun drawn,
but pointed downward. The "wife," who was standing 15 feet inside, gave consent.
Even though the conversation was characterized as "very amicable," the court found
that the consent was involuntary, partly because the officer's gun was still drawn.
(Challoner (1982) 136 Cal.App.3d 779.)
Example:
Police investigating a robbery/murder arrived at the suspect's home at 6:00 a.m.
Father let them in and, guns drawn, they approached the suspect's bedroom. He came
out highly agitated, waving arms and jumping. They handcuffed him, led him into the
living room and sat him on a couch. After a few minutes of questioning, they asked if
he objected to a search of his car. He said, "Go ahead." The Supreme Court found the
consent valid, even though the suspect was handcuffed and had not been Mirandized
and even though the officers' guns had been drawn a few minutes before the request to
search. (Ratliff (1986) 41 Cal.3d 675.)
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(2)
Custody
Custody is a factor which tends to show the consent is not voluntary. However,
custody alone, or even in combination with another "negative factor" such as the lack
of any Miranda warning, will not necessarily destroy an otherwise valid consent
search. (Monterroso (2005) 34 Cal.4th 743, 758; Meza-Corrales (9th Cir. 1999) 183
F.3d 1116, 1125; Hernandez (1988) 199 Cal.App.3d 1182.) In other words, it is
perfectly possible to get a valid consent even from someone who is already arrested
and handcuffed. (James (1977) 19 Cal.3d 99; Terrill (1979) 98 Cal.App.3d 291;
Lindsey (9th Cir. 1989) 877 F.2d 777; Childs (9th Cir. 1991) 944 F.2d 491.)
b.
Coercion
The consenter's "mere perception of coercion cannot support a finding of involuntary consent
when, in fact, there was no coercion, plain or subtle." (Boyer II (2006) 38 Cal.4th 412, 447,
fn. 21.) The court will look to the words you use in seeking consent (and how you express
those words at the suppression hearing) in determining voluntariness. The key question is,
did you make the consenter feel he had a real choice to consent, or did you make him feel that
he "had" to consent? (Gonzales (9th Cir. 1992) 979 F.2d 711, 713.)
Example:
Three members of the vice squad asked permission of the ticket taker to inspect a
steam bath establishment, but he refused. One officer then stated that because he was
a police officer, he had the right to go in and check the permit (which was not true).
The evidence was suppressed because the ticket taker's consent was coerced. (Brown
(1975) 53 Cal.App.3d Supp. 1.)
Example:
An officer stopped two suspiciously acting males in a residential area at 3:30 a.m.
Their pockets and backpacks were bulging with objects. After confiscating a visible
knife and asking about identification, the officer asked Stein if he "had any
objections" to the officer's looking through the backpack. Stein asked, "Why?" The
officer explained about burglaries in the area. Stein asked if the officer had a search
warrant and the officer said "No." The officer then asked Stein what his objections
were and told him he shouldn't have any if he wasn't doing anything wrong. The
results of the search which followed were suppressed by the court because the officer's
language was coercive. It was equivalent to saying, "By exercising your constitutional
right to refuse consent, you will be admitting to me that you did something wrong."
(Crofoot (1981) 121 Cal.App.3d 717.)
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(1)
3.29
Using Commands Instead of Asking Permission Negates Consent
Asking for permission ("Would you mind if I look in the trunk?") (D.M.G. (1981) 120
Cal.App.3d 218) indicates voluntariness. Commanding someone to "open the door"
(Poole (1986) 182 Cal.App.3d 1004) will negate a finding of voluntary consent.
(2)
Telling the Person that You Will Get a Warrant if He/She Refuses to Consent
It is always proper to tell a person the truth, i.e., that you will seek a search warrant if
you do not obtain consent. (Ratliff (1986) 41 Cal.3d 675; Goldberg (1984) 161
Cal.App.3d 170.)
What you may not do is lie or misrepresent the situation--either (1) by saying or
implying that you already have a warrant when you do not or (2) by saying or
implying that it is a "given" or "absolute," i.e., that if he refuses consent, you will
simply go get a warrant (as opposed to seeking one). (Kaplan (9th Cir. 1990) 895
F.2d 618.)
If you already have probable cause to search, then telling someone that you plan to go
get a warrant probably would not be found to be "coercive," particularly if you advise
the suspect that he has the right to refuse to give consent. (James (1977) 19 Cal.3d 99;
McClure (1974) 39 Cal.App.3d 64; Soriano (9th Cir. 2003) 346 F.2d 963; MezaCorrales (9th Cir. 1999) 183 F.3d 1116, 1125.)
c.
Demeanor
Your "demeanor" (i.e., attitude, looks, manner, tone of voice, etc.) before and while seeking
consent is extremely important in the court's determination of voluntariness. An officer who
develops the polite "can-you-help-me" attitude will find that she is not only more successful
in obtaining consent, but also that the consent survives a suppression challenge.
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d.
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Deceit/Ruse
If you obtain consent to enter by "trick, ruse or subterfuge," the consent will be considered
involuntary, at least if you misrepresent your authority or purpose.
(1)
Misrepresenting Your Authority
If you falsely state that you have a warrant when you do not, any consent you obtain
will be invalid. "When a law enforcement officer claims authority to search a home
under warrant, he announces in effect that the occupant has no right to resist the
search." (Bumper (1968) 391 U.S. 543.) Such statements, when untrue, will render
consent involuntary.
(2)
Misrepresenting Your Purpose
If you tell the consenter that you want to enter for "X" purpose when your true
purpose is to "search" (e.g., look for narcotics, stolen property, etc.), any consent you
obtain will be ruled involuntary.
Example:
Undercover officers set up surveillance in an unoccupied apartment next door to a
suspected dope dealer. One officer went to the suspect's door, knocked, and asked if
he could come in to make a phone call. Once inside, the officer made the phone call,
but also observed narcotics and elicited incriminating remarks from the suspect which
were then used to obtain a search warrant. The court suppressed the evidence because
the consent to enter was involuntary. The officer had misrepresented his purpose as
being to use the phone, whereas his true purpose was to look for narcotics. (Lathrop
(1979) 99 Cal.App.3d 967.)
Example:
A refrigerator repairman observed marijuana in a home and phoned the police. An
undercover officer went out to the house, knocked, and told the suspect that he wished
to talk to the repairman. Inside, the officer confirmed the repairman's observations
and then obtained a search warrant. The evidence was suppressed. The officer had
misrepresented the real purpose behind his request to come inside. (Mesaris (1970) 14
Cal.App.3d 71.)
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Example:
Note:
(3)
3.31
An officer received an anonymous letter that DeCaro had submitted a false insurance
claim. The officer asked an insurance investigator to enter DeCaro's home under the
guise of being a potential home buyer (DeCaro's home was listed for sale). While
looking around the home with the real estate agent, the investigator saw stereo
components and other equipment that DeCaro had falsely reported as stolen. A search
warrant was obtained and property was seized. It was all suppressed, however,
because the investigator (who was the officer's agent) had misrepresented his purpose
as being there to possibly purchase the house, while his real purpose was to look for
certain crime-related evidence. (DeCaro (1981) 123 Cal.App.3d 454.)
If the real estate agent had been holding a true "open house" for the general
public, the court would probably have reached the opposite result.
Misrepresenting Your Identity (Undercover Operators)
If your true purpose (stated or implied) for entry is to further an investigation or
complete an undercover deal (i.e., buy narcotics or stolen property, sell illegal
weapons, etc.) and the consenter lets you in, his consent is valid. The fact you
misrepresent your name, job, or identification makes no difference. (Hoffa (1966) 385
U.S. 293; Toubus (1981) 114 Cal.App.3d 378.)
However, if the real reason for your entry is to search for evidence, then you have
misrepresented your purpose and the evidence will be suppressed.
e.
Miranda Warnings
Miranda warnings are not required prior to requesting consent to search. (Schneckloth (1973)
412 U.S. 218; James (1977) 19 Cal.3d 99; Carvajal (1988) 202 Cal.App.3d 487.)
Furthermore, a voluntary consent may be obtained even after a person has asserted his
Miranda right to remain silent or his right to an attorney. (Ruster (1976) 16 Cal.3d 690;
Shegog (1986) 184 Cal.App.3d 899.) On the other hand, if a suspect has validly waived his
Miranda rights, that will be a factor favoring voluntariness of the consent.
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f.
SEARCH AND SEIZURE - PREMISES
Advisement of Right to Refuse
The United States Supreme Court has rejected the suggestion that police officers must always
inform citizens of their right to refuse when seeking permission to conduct a warrantless
consent search. (Drayton (2002) 536 U.S. 194; Monterroso (2005) 34 Cal.4th 743, 758;
James (1977) 19 Cal.3d 99; Gonzales (9th Cir. 1992) 979 F.2d 711, 714.) However, giving
such advice is a powerful indicator of voluntariness and will always strengthen a legal case.
(Ruster (1976) 16 Cal.3d 690; see Bostick (1991) 501 U.S. 429.)
g.
Written Waiver
Written waiver of Fourth Amendment rights is not required in order to get a voluntary consent
to search. A written waiver, however, is another very strong indication that the consent was
voluntary. (Galindo (1991) 229 Cal.App.3d 1529, 1536.)
2.
The "Consenter"
The courts will often consider unusual conditions, conduct or demeanor of the consenter in
the determination of whether the consent was voluntarily given.
a.
Condition of the Consenter
Some people, because of their age, intoxication, mental condition, etc., are less likely to give
voluntary consent, although it is certainly possible.
Example:
b.
Suspect's consent was voluntary, even though he had been arrested and was in critical
condition and in pain, due to drugs, in a hospital emergency room. (George (9th Cir.
1993) 987 F.2d 1428, 1431.)
Conduct of the Consenter
Certain conduct of a consenter may show the court that the consent was either more or less
likely voluntary.
(1)
Aiding the Search
If a consenter--without being asked to--aids you in the search (e.g., getting the
evidence, opening the door, trunk, purse, etc.), his assistance points to voluntary
consent.
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(2)
3.33
Admits/Denies Guilt
A consenter who admits guilt is much more likely to give voluntary consent to search
than one who denies guilt.
C.
Authority to Consent
A consenter must have the "authority" to consent to the search. A person can, of course,
always consent to the search of property that he owns or occupies all by himself.
However, a problem often occurs when a person consents to the search of property owned or
possessed by another. In such a circumstance, the consenter must either have actual authority
or apparent authority. Actual authority may take the form of express authorization by the
owner of the property to a third party to give consent to a search. More commonly, however,
it takes the form of shared or mutual use, plus joint access or control over a searched area or
container. (Matlock (1974) 415 U.S. 164, 171; Oldham (2000) 81 Cal.App.4th 1, 9.) For
example, defendant could not challenge the search of his personal belongings stored in a
private home when the police searched the bags pursuant to the consent of a resident who
routinely had access to the two paper bags left in her garage. (Schmeck (2005) 37 Cal.4th
240, 281.)
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1.
SEARCH AND SEIZURE - PREMISES
Actual Authority Through Mutual Use and Joint Access and Control
The following are situations identifying when a consenter does or does not have actual
authority to consent to the search of someone else's property.
a.
Joint Occupants of Premises
A joint or co-occupant of premises may consent only to the search of shared property or areas.
(Hamilton (1985) 168 Cal.App.3d 1058; Wilkins (1993) 14 Cal.App.4th 761, 773; Wright
(7th Cir. 2016) 838 F.3d 880--shared computer.) Even if a co-occupant consents, the
objection by a co-occupant with equal authority over the premises, and who is present,
overrides the consent. (Randolph (2006) 547 U.S. 103; see Fernandez (2014) 134 S.Ct. 1126,
1129-1130; also see discussion below at Ch.3-VI-C-2, "Third Party's Presence/Objection.")
(1)
Husband-Wife
One spouse may consent to the search of the other's property only if the consenter has
joint access to it or joint control over it. A wife may not consent to the search of areas
"belonging to" or having been "staked out" by the husband alone, e.g., desk, clothes,
tackle box, etc. (Terry (1970) 2 Cal.3d 362.) Before searching questionable areas or
objects, you can ask the consenter if he or she uses or has access to the object or area
in question.
In Bishop (1996) 44 Cal.App.4th 220, a wife was found to have authority to consent to
police entry of the residence where she and her husband had lived, and from which he
had no legal right to exclude her, even though she had separated from him one month
earlier and moved into a temporary women's shelter and the husband had changed the
locks on the house.
(2)
Parent-Minor Child
If a minor child lives with a parent, the parent may consent to entry and search of a
residence, including the minor's room. (In re D.C. (2010) 188 Cal.App.4th 978;
compare Oldham (2000) 81 Cal.App.4th 1, 9-10, where a parent would have to have
apparent authority to consent to a search of adult child's room.) This is true even if the
minor is present and objects to the search. Parents of minor children may override the
minor's objection to a search. (In re D.C. (2010) 188 Cal.App.4th 978.)
However, a parent cannot give consent to search the minor child's private, "personal
effects," such as his suitcase or tool box, even if they are located in the parent's
bedroom, where the parent makes no claim of right or control over the object or its
contents. (Scott K. (1979) 24 Cal.3d 395; Daniels (1971) 16 Cal.App.3d 36.)
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With regard to entering a resident, you should be very careful about relying on a
minor's consent to enter and/or conduct a search. "As a child advances in age [he/she]
acquires greater discretion to admit visitors on [his/her] own authority." Thus an 11
year old would probably lack sufficient authority (Jacobs (1987) 43 Cal.3d 472, 481482), whereas a 16 year old might well possess apparent authority (Hoxter (1999) 75
Cal.App.4th 406, 412-414; see also Santiago (1997) 55 Cal.App.4th 1540, 1544,
where an 11-year-old girl caretaker, who was the victim of child abuse, had authority
to permit officers to conduct a not-very-intrusive search after they were already
lawfully inside the residence).
(3)
Roommates
A roommate may consent to the search of an area over which the roommate has a
"possessory right or control." (Beach (1970) 11 Cal.App.3d 1032; Murillo (1966) 241
Cal.App.2d 173.) When seeking the consent of a roommate, remember that there is a
difference between searching "the common areas of a house, such as the living room
and kitchen," and searching the suspect's bedroom, his bathroom or his personal
property. (Young (1976) 57 Cal.App.3d 883; McClelland (1982) 136 Cal.App.3d
503.)
Example:
(4)
Pamela moved out because she was afraid of one of her roommates. Before her rental
period expired, she came back with an officer to gather her belongings. Once inside,
she had authority to consent to a search of her previously shared bedroom, a closed
box located there that she also shared with one of her roommates, the "common den,"
and a large wooden box located in the den, but not to a search of a closed bathroom
and bedroom used exclusively by another roommate. (Engel (1980) 105 Cal.App.3d
489.)
Host-Guest
A host may consent to the search of a room where a non-paying guest is staying.
(Burge (9th Cir. 1965) 342 F.2d 408; Yarbrough (9th Cir. 1988) 852 F.2d 1522;
Oldham (2000) 81 Cal.App.4th 1, 9--father could consent to search of bedroom of his
apartment, where his grown son had stayed for years, rent free.) Generally, the host
does not have authority to consent to search the guest's personal property. (Jones
(1960) 362 U.S. 257; Cruz (1964) 61 Cal.2d 861.) However, a guest does not have a
reasonable expectation of privacy in an open container left in an area readily
accessible to anyone in the residence. (Fay (9th Cir. 2005) 410 F.3d 589, 590.)
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Although a homeowner can consent to the search of areas a guest is using, a
homeowner cannot consent to clandestine surveillance of another person in the home.
For instance, a homeowner's consent for police to enter and install secret video
recording equipment will not overcome the right of privacy that a guest (or co-tenant)
has inside the residence. (Henderson (1990) 220 Cal.App.3d 1632.)
b.
Landlord-Tenant
A landlord generally may not consent to the search of premises rented by a tenant. (Chapman
(1961) 365 U.S. 610; but see Yarbrough (9th Cir. 1988) 852 F.2d 1522.) The only exception
to this rule is after the landlord has regained exclusive possession of the rental property (e.g.,
by eviction or abandonment). (Ingram (1981) 122 Cal.App.3d 673.)
Example:
Escudero burglarized the victim's home. When officers found out Escudero lived at
and worked on a ranch, they went there to arrest him. The officers talked to the owner
of the ranch. The owner then took the officers to the foreman's house where Escudero
lived. The owner held the door open for the officers. The officers entered the house
and arrested Escudero. The court ruled that the owner had no authority to consent to
the officer's entry. (Escudero (1979) 23 Cal.3d 800.)
Example:
Owner had no authority, actual or apparent, to unlock door and let CHP officer enter a
rented garage and inspect for stolen vehicles given that the owner had rented it out for
a one-month period, the renter had paid at least some portion of the rent, the month
was not up yet, and there were no indications of abandonment. (Roman (1991) 227
Cal.App.3d 674.)
Example:
Landlord could not give lawful consent for police to enter a tenant's room because
there had been no lawful eviction, even though landlord had obtained a restraining
order directing the tenant to stay away from that room. (Thompson (1996) 43
Cal.App.4th 1265.)
The same rules apply to police searches of college dormitories because the student resident
has a reasonable expectation of privacy in his dorm room, even if the housing contract
permits inspections by staff. (See Superior Court (Walker) (2006) 143 Cal.App.4th 1183,
1207-1208.)
c.
Motel Owner-Boarder
A motel-hotel owner or employee may not normally consent to the search of a boarder's
room. (Escudero (1979) 23 Cal.3d 800; Stoner (1964) 376 U.S. 483; Rodriguez (1990) 497
U.S. 177, 188.)
Note:
Although motel employees may enter a rented room to clean, you may not
send them in to look for crime-related evidence or else they become your
agent, which invalidates the search.
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d.
3.35
Employer-Employee
An employer or employee may consent to the search of areas over which he has common
authority or control, e.g., file cabinets.
e.
Real Estate Agents
There are now two separate rules for the entry of listed houses. If an officer openly requests a
real estate agent's permission to enter a residence to investigate a crime, the entry would be
invalid because the agent lacked the authority from the owner or tenant to allow police to
enter to conduct an investigatory search. (Jaquez (1985) 163 Cal.App.3d 918.)
If, however, an officer does not disclose his purpose or his identity as an officer and enters on
the ruse that he is a prospective home buyer, he does not violate any expectation of privacy on
the part of the homeowner, who had provided limited consent to anyone to enter and observe
the areas generally open to prospective buyers. (Lucatero (2008) 166 Cal.App.4th 1110.)
f.
Military Bases
An impartial military base commander, upon a showing of probable cause, can authorize a
civilian officer's search of military barracks under the commander's control. (Jasmin (2008)
167 Cal.App.4th 98.)
2.
Third Party's Presence/Objection
If two or more persons have joint control and equal authority over the premises (i.e., spouses
or roommates, as opposed to parent and child, or renter and visitor), different scenarios can
arise:
-
if no one is present, you may enter and search based on the valid consent given
previously by an absent cotenant;
-
if only one is present, you may enter and search based on that person's consent, even
though the other person, whose property is seized and who has joint control of the
premises, is absent (Meneley (1972) 29 Cal.App.3d 41, 56; Clark (1993) 5 Cal.4th
950, 980; Boyer (1989) 48 Cal.3d 247, 276);
-
if more than one cotenant is present, the affirmative consent from one cotenant is
sufficient; you do not need to seek or obtain consent from the other one(s) present
(Childs (9th Cir. 1991) 944 F.2d 491, 494; Oldham (2000) 81 Cal.App.4th 1, 9-10);
-
if an absent cohabitant has given valid consent, you may rely on it and enter without
seeking or obtaining consent from the other one(s) present at the premises, as long as
the one who is present does not object (Veiga (1989) 214 Cal.App.3d 817, 830), but if
the cohabitant who is present objects, then the refusal to permit entry or search
prevails (Randolph (2006) 547 U.S. 103).
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There is a distinction to be drawn when one co-habitant who is physically present objects to
entry or search. In Randolph, the Supreme Court held that officers cannot rely upon the
consent of a cohabitant if another cohabitant is physically present and expressly refuses to
permit an entry or search of shared premises. (Randolph (2006) 547 U.S. 103; see Moore (9th
Cir. 2014) 770 F.3d 809, 813 [Randolph requires an express refusal; an implicit refusal is
insufficient].)
Randolph was clarified and limited in Fernandez (2014) 134 S.Ct. 1126. The Court in
Fernandez restricted Randolph to the situation of the nonconsenting co-habitant being present
at the same time another co-habitant consents. This limitation applies even if the
nonconsenting party had previously objected to an entry by police before leaving the
residence. The Court also clarified that the fact that the co-occupant has been removed from
the scene by police does not change the analysis: all that is required is that the removal of the
co-occupant was objectively reasonable, such as when the objecting cotenant is absent
because of a lawful detention or arrest. Law enforcement's subjective motivations are not
controlling. (Fernandez (2014) 134 S.Ct. 1126, 1135.)
Example:
Police responded to a robbery call and were directed to an apartment in a multi-unit
residence where they had observed a man matching the dispatch running inside. Less
than two minutes later, they heard sounds of screaming and fighting in the unit. A
woman who was holding a baby and appeared to have been assaulted answered the
door and denied that anyone other than her four-year-old son was home with her.
When one of the officers asked her to step outside so that they could sweep the
residence, Fernandez appeared at the door in boxer shorts, stepped forward, and said,
"You don't have any right to come in here. I know my rights." Based on the apparent
assault, Fernandez was removed and taken into custody. Approximately one hour
later, the woman who had answered the door gave her consent to search the apartment.
HELD: Her consent was valid. The suspect had been lawfully arrested and was not
present when his cotenant consented to the search. (Fernandez (2014) 134 S.Ct.
1126.)
If it is a minor child living in the home who objects either to the entry or search, a parent's
consent to enter or search will override the minor child's objections. (In re D.C. (2010) 188
Cal.App.4th 978.)
Even if an adult cohabitant who is immediately present objects, a nonconsensual entry or
search would still be lawful on these bases (Randolph (2006) 547 U.S. 103, 117, fn. 6):
•
Entering to protect a resident from domestic violence;
•
Entering to keep the peace while the consenting occupant gathers belongings and
retreats to a place of safety;
•
Entering "to determine whether violence (or the threat of violence) has just occurred
or is about to (or soon will) occur";
•
Exigency based on a reasonable belief that someone inside is in need of aid;
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•
Exigency based on hot pursuit;
•
Exigency based on protecting the safety of officers;
•
Exigency based on a threat that evidence would be destroyed while awaiting the
issuance of a search warrant;
•
Exigency based on the likelihood that a suspect will flee; or
•
Exigency based on the imminent destruction to the building.
In addition to exigent circumstances, which permit a warrantless entry to search for evidence
of a crime or criminal suspects, warrantless entries are allowed under the emergency aid or
community caretaking exceptions when the circumstances, viewed objectively, require that an
officer enter to provide aid or prevent injury. (See generally Brigham City (2006) 547 U.S.
398, 406; Fisher (2009) 558 U.S. 45; Troyer (2011) 51 Cal.4th 599.)
3.
Actual Authority Through Temporary Possession of Personal Property
Someone who gives his or her personal property to a third person to hold, carry, etc., is not
necessarily giving up his "reasonable expectation of privacy" in the property. Therefore, the
third party may not have the authority to consent to a search of the other person's property. If
you are not sure whether the third party has actual authority to consent, it would be wise to
obtain a search warrant for the personal property.
Example:
Consenter did not have authority to consent to search of a locked briefcase given to
him by the suspect, who kept the key. (Murillo (1966) 241 Cal.App.2d 173.)
Example:
Consenter did have authority to consent to search of a locked briefcase given to him
by the suspect when the suspect also gave the key to the consenter. (Sartain (9th Cir.
1962) 303 F.2d 859.)
4.
Apparent Authority
Under the doctrine of "apparent authority," courts will uphold a search if you had a
reasonable, good-faith belief, based on all the circumstances, that the consenter had the
authority to consent. (Rodriguez (1990) 497 U.S. 177, 188; Hoxter (1999) 75 Cal.App.4th
406, 413; Oldham (2000) 81 Cal.App.4th 1, 9-10; Wilmarth (1982) 132 Cal.App.3d 383, 387388.) In other words, apparent authority exists as long as (1) it was reasonable for you to
believe something that turned out not to be true, and (2) the thing you mistakenly believed, if
true, would have meant the person consenting had authority to consent. (Fiorillo (9th Cir.
1999) 186 F.3d 1136, 1144.)
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If there is any question concerning the consenter's authority, you can ask questions to
determine the consenter's relationship to the object or area so that you can determine whether
the consenter shares the use of, or has joint access or control over, the area or object to be
searched. (Jacobs (1987) 43 Cal.3d 472, 481-484; Montoya (1981) 114 Cal.App.3d 556, 562563.)
Example:
At a casino, Mr. McGee and Ms. Welch were questioned about their possible use of
counterfeit money. McGee consented to a search of their nearby rental vehicle. In the
vehicle's trunk officers found some luggage and a woman's purse. In the purse they
found Welch's driver's license and 25 counterfeit $20 bills. HELD: Search of the car
and trunk was legal. However, the search of the purse was not because the officers
could not reasonably believe McGee shared use of and had joint access to or control
over Welch's purse or otherwise had either actual or apparent authority to consent to a
search of it. (Welch (9th Cir. 1993) 4 F.3d 761.)
Example:
It was unreasonable for an ATF agent to believe that a live-in caregiver and occasional
housekeeper, whose primary job was to tend for a disabled teenager, had authority to
consent to a search of the closed bedroom belonging to the sole custodial parent. The
agent knew only that the caregiver had been inside the bedroom on occasion and
should have inquired into the extent of the caregiver's current authorized access to the
bedroom before relying on his consent. (Dearing (9th Cir. 1993) 9 F.3d 1428, 14291430.) In contrast, a homeowner's consent to search, unless restricted, would include
access to a bedroom with a key lock on the door. (Enslin (9th Cir. 2003) 315 F.3d
1205, 1211.)
Example:
Police who were trying to locate defendant as a suspect in a recent robbery knocked
on his door. A visitor answered and consented to their request to enter. The entry was
lawful because "police may assume, without further inquiry, that [an adult] person
who answers the door in response to their knock has the authority to let them enter."
(Ledesma (2006) 39 Cal.4th 641, 703.)
Example:
Woman who allowed homeless friend to move into her residence did not have
apparent authority to permit police to search the friend's closed cardboard boxes of
personal belongings, which the police knew belonged to the friend and were stored in
a separate area of the garage. (Fultz (9th Cir. 1998) 146 F.3d 1102, 1106.)
D.
Scope of Consent
The places where you may search are limited entirely by the "scope" of the consent given.
(Szabo (1980) 107 Cal.App.3d 419.) In other words, a person can limit the scope of a consent
search. (Jimeno (1991) 500 U.S. 248, 252.) It is your responsibility to insure that the
consenter gave consent to search the areas where you are looking.
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Example:
Consent to look for someone is not consent to look in places a person could not be
located.
Example:
Consent to search a house is not consent to answer the telephone. (Harwood (1977)
74 Cal.App.3d 460; but see Ledesma (2006) 39 Cal.4th 641 [officers with probable
cause and exigent circumstances could answer the telephone].)
Example:
Consent by occupant/suspect for officers to enter residence where murder had just
occurred did not justify searching for anything beyond additional victims or suspects.
(Timms (1986) 179 Cal.App.3d 86.)
Example:
Consent to search a suitcase includes consent to look inside all compartments and
containers in the suitcase. (Shandloff (1985) 170 Cal.App.3d 372.)
In general, "[t]he scope of a consensual search for narcotics is very broad and includes
closets, drawers, and containers." (Miller (1999) 69 Cal.App.4th 190, 203.) Further, if your
search remains within the scope consent, you may seize any crime-related evidence that you
see in plain view. In other words, in the course of a search for X, police do not have to blind
themselves to other objects that are in plain view, such as contraband or evidence of some
other crime, simply because these other objects are not connected to the original purpose of
their search. (Duncan (1986) 42 Cal.3d 91, 99; Miller (1999) 69 Cal.App.4th 190, 203.)
Example:
Smith consented to a search of her apartment to verify that Jones, a probationer, was
not there. The officers could not call out to others in the apartment or track the sounds
from upstairs because the dryer in the kitchen was making a loud banging noise, so
one of the officers opened the dryer door to shut it off and saw a package of marijuana
in the dryer. The court rejected Smith's argument that opening the dryer exceeded the
scope of her consent. The door was opened for officer safety so that they safely could
conduct the search for Jones. The fact that the officers smelled marijuana and saw a
shoebox of cash and packaging materials before opening the dryer did not invalidate
their legitimate safety concerns. (Smith (2010) 190 Cal.App.4th 572.)
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E.
3.37
Withdrawal of Consent
A suspect may withdraw his consent at any time during the search. When this occurs, you must
immediately stop your search. (Christopher B. (1978) 82 Cal.App.3d 608; Hamilton (1985) 168
Cal.App.3d 1058.) Positive actions that are inconsistent with a consent previously given may act
as a withdrawal of the consent. (Hamilton (1985) 168 Cal.App.3d 1058.)
Note:
F.
This will never be a problem if you are also searching under the authority of a
valid warrant or exigency.
Consent After Formal Charges Filed
After formal charges have been filed against the suspect and an attorney has been appointed or
retained on those charges, it is improper to conduct a consent search without also getting the
consent of the suspect's counsel or a search warrant. (Tidwell (1971) 17 Cal.App.3d 780.)
VII.
SEARCHES INCIDENT TO ARREST
When a person is lawfully arrested in a home or other building, a limited right exists to conduct a
warrantless search not only of his person, but also of the area within his "immediate control"
("arm's length," "lunging distance"). (Chimel (1969) 395 U.S. 752, 763; Tarazon (9th Cir. 1993)
989 F.2d 1045, 1051.)
It is impossible to say exactly how much physical area is covered by this exception. It is
supposed to include any place from which the suspect might otherwise grab a weapon or destroy
evidence. The fact that the suspect is already immobilized--under arrest or even handcuffed--is
not determinative. (Rege (2005) 130 Cal.App.4th 1584, 1589.)
Note:
In Gant (2009) 129 S.Ct. 1710, 1714, the Supreme Court restricted the Belton
"incident-to-arrest" rule for vehicle searches. Now, as to vehicles, a search
incident to arrest is not allowed if the arrestee has been secured and is not within
reaching distance of the passenger compartment--unless there is reason to believe
that the vehicle contains evidence of the arrest offense. The Court did not discuss
if Gant would impact the search of premises incident to arrest.
However, one California case has held that officers may not routinely enter a residence to conduct
a search incident to arrest once a suspect is handcuffed and secured in a squad car. In such
circumstances, routine entry and search of the area where the suspect had been standing when he
was arrested is beyond the Chimel exception. (Leal (2009) 178 Cal.App.4th 1051; see also
Summers (1999) 73 Cal.App.4th 288, 291.)
Example:
Officers went to Leal's residence to serve two misdemeanor arrest warrants and called out
for 45 minutes before Leal opened the front door. Leal was handcuffed and secured in a
squad car. After a sweep of the small house, one officer searched the area near the
threshold where Leal had been standing when he was arrested. Although the protective
sweep was not criticized, stepping back into the house to conduct a warrantless search
incident to arrest fell outside the Chimel exception. The court noted that a different
analysis would have applied had Leal not yet been fully secured or if nearby third parties
were unaccounted for. (Leal (2009) 178 Cal.App.4th 1051.)
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Example:
Officers arrested defendant in her motel room, ordered her to lie on the floor, and
handcuffed her while they secured the area. One officer lifted the mattress of the only
bed in the room, which was approximately three feet from the defendant, and found a
stash of narcotics and paraphernalia. HELD: The search under the mattress was a
valid search incident to arrest. (Rege (2005) 130 Cal.App.4th 1584, 1590.)
Example:
Incident to the forcible arrest of an armed robbery suspect in his bedroom, it was legal
to search the area within "lunging distance" (six to eight feet), including a box at the
foot of the bed, where two guns were discovered. (Spencer (1972) 22 Cal.App.3d
786.)
Example:
Officers saw defendant open the door to his apartment while holding a black bag and a
glass meth pipe with white residue. Because these observations (plus the officers'
prior knowledge and expertise) provided probable cause to arrest, they seized these
items from him, arrested him, handcuffed him, and seated him in the hallway. Then
they searched the black bag and found additional contraband. HELD: The search of
the black bag was valid as incident to defendant's custodial arrest because (1) the bag
had been in an area under his control at the time of his arrest and (2) nothing between
the time of the arrest and the time of the search rendered the search unreasonable.
(Nohara (9th Cir. 1993) 3 F.3d 1239, 1242-1243.)
A.
Contemporaneous Requirement
A search incident to an arrest is permissible only if it takes place at the same place and at
essentially the same time as the arrest, i.e., just before, during or immediately afterward.
(Chimel (1969) 395 U.S. 752; but see Summers (1999) 73 Cal.App.4th 288.)
B.
Searches of Areas Beyond Immediate Reach
Normally, any evidence you find by searching beyond the suspect's "immediate control" will
be suppressed unless you see it in "plain view" while you are still within the "immediate
control" area.
Furthermore, it is improper for you to try to expand or enlarge the "plain view" or the
"immediate control" area by moving the suspect from room to room. (Eiseman (1971) 21
Cal.App.3d 342; Sanderson (1980) 105 Cal.App.3d 264.)
However, if the arrestee asks to go to another part of the premises (e.g., to get his wallet or
shoes, to change clothes, to go to the bathroom), it is perfectly legal for you to accompany
him for security reasons, and whatever you see in "plain view" may properly be seized.
(Chrisman (1982) 455 U.S. 1.) The same is true for a minor you are taking into protective
custody. (Breault (1990) 223 Cal.App.3d 125, 132.)
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3.39
VIII. ABANDONMENT
A.
Premises
A person who voluntarily abandons his or her property no longer retains any reasonable
expectation of privacy in that property. Although it seldom occurs that an entry of a home
can be justified on an abandonment theory, it is possible.
More frequently, it is rented apartments or motel units that might be considered "abandoned"
--either because the rental term has expired and/or because it appears from all the
circumstances that the tenant has permanently departed. (Parson (2008) 44 Cal.4th 332, 345346; Ingram (1981) 122 Cal.App.3d 673.)
Example:
Most of the homes in a certain area were to be torn down because of the rerouting of a
freeway, and many were boarded up or had "For Sale" signs. When officers arrived at
a house that appeared abandoned (e.g., grass eight inches high), they noticed that some
people were in a garage. Near the people were "the grill, bumper and hood of the car
which appeared to be resting on the frame or axle on the floor of the garage."
Thinking that these were thieves who had chosen an abandoned garage to strip the car,
the officers entered, arrested the occupants and saw heroin and other contraband in
plain view. HELD: The officers were reasonable in their belief the garage was abandoned, and the evidence was admissible. (Medina (1968) 265 Cal.App.2d 703.)
Example:
Parson, a suspect in a Sacramento County murder, paid for a one-night stay at a Gilroy
motel, never checked out, and did not answer the door or his telephone for over six
hours beyond checkout time, even though his car was still parked in the lot. A motel
manager found the bathroom window open and the window screen on the ground
outside Parson's room. The manager entered the room through the window and found
Parson missing. Officers responded, conducted a preliminary search, secured the
motel room, and obtained a search warrant. HELD: The warrantless entry and search
were lawful. The objective facts established that Parson has abandoned the room and
his possessions left there. (Parson (2008) 44 Cal.4th 332, 345-346.)
Example:
Abel was arrested in his hotel room. He was permitted to pack all of his belongings.
Afterwards, officers searched the room and found evidence in the wastebasket, which
helped convict Abel. HELD: The evidence was admissible because the room had
been abandoned. (Abel (1960) 362 U.S. 217, 241; see also Bennett (1998) 17 Cal.4th
373, 391, fn. 5.)
B.
Garbage
The United States Supreme Court has made it very clear that there is no reasonable
expectation of privacy in trash or garbage, even if it has been put in a sealed bag and placed at
curbside or otherwise outside the "curtilage" of the residence for pickup. (Greenwood (1988)
486 U.S. 35, 40; Bowman (9th Cir. 2000) 215 F.3d 951, 963.)
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Prior California cases held that under the state Constitution a person retained a reasonable
expectation of privacy in his trash until it had been commingled with other trash (Krivda
(1971) 5 Cal.3d 357) and an "exploratory" warrantless search of trash or garbage placed out
for curbside for collection violated state law (Rooney (1985) 175 Cal.App.3d 634). These
cases were effectively overruled by Greenwood. (Ananda Church of Self-Realization (2002)
95 Cal.App.4th 1273, 1283, fn. 3.)
Note:
C.
Further, as repeated throughout the Sourcebook, evidence seized in compliance
with the federal Constitution is admissible in state court even if there was a
violation of state law in obtaining the evidence. (McKay (2002) 27 Cal.4th
601, 608.)
Other Items
If a person leaves an object behind, or disclaims any knowledge of it or interest in it, he has
relinquished any reasonable expectation of privacy he might have had in the object. (Ayala
(2000) 24 Cal.4th 243, 279; Gallego (2010) 190 Cal.App.4th 388, 395; Decoud (9th Cir.
2006) 456 F.3d 996, 1007.) It is therefore legal for you to search the item. "Abandonment"
in this Fourth Amendment sense has a very different meaning than it does in the strict
property-right sense. (Baraka H. (1992) 6 Cal.App.4th 1039.)
Example:
Officers who went to a public restaurant to question and possibly arrest a robbery
suspect could legally search the jacket that he had left behind on the back of a chair at
an empty table. (Juan (1985) 175 Cal.App.3d 1064.)
Example:
Suspects were properly arrested inside a house where officers had reason to believe
cocaine had just been delivered in a shoulder bag. The bag was discovered just inside
the front door, but all the occupants/arrestees disclaimed ownership of it and any
interest in it. Therefore, it was legal for the officers to search the bag. (Mendoza
(1986) 176 Cal.App.3d 1127.)
Example:
Street dope-seller had no objectively reasonable expectation of privacy in a crumpled
paper bag, containing his stash, which he had placed among some leaves and grass
under a pedestrian walkway, so as to look like discarded litter, even though surveilling
police knew the bag was his. (Baraka H. (1992) 6 Cal.App.4th 1039.)
Example:
Defendant who robbed a Walgreen's accidentally left his cell phone in the store and
would have reclaimed the phone had he not feared arrest. HELD: The cell phone was
"abandoned," and officers could lawfully inspect the battery to identify its owner.
(Daggs (2005) 133 Cal.App.4th 361, 369.)
Example:
Gallego tossed a cigarette butt onto a public sidewalk. Detectives retrieved the butt
and submitted it for DNA testing in connection with the murder of Gallego's aunt.
Rejecting his claim that DNA testing violated the Fourth Amendment, the court found
that the DNA obtained from the saliva in the cigarette was no different from a
fingerprint and that by voluntarily discarding the cigarette on a public sidewalk
Gallego demonstrated an intent to abandon the cigarette and his DNA contained in it.
(Gallego (2010) 190 Cal.App.4th 388.)
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TABLE OF CONTENTS
Page
I.
II.
III.
IV.
V.
INTRODUCTION ............................................................................................................... 4.1
A. Expectation of Privacy .................................................................................................. 4.1
DETENTIONS/STOPS ....................................................................................................... 4.1
A. Definition ...................................................................................................................... 4.1
B. Reasonable Suspicion .................................................................................................... 4.2
1. Traffic Stops ............................................................................................................ 4.2
2. Investigative Detentions ......................................................................................... 4.2c
3. Anonymous Tips/9-1-1 Calls .................................................................................. 4.2f
4. "Community Caretaking" and "Special Needs" ...................................................... 4.2g
5. "Mistake of Law" .................................................................................................... 4.2h
6. Attenuation .............................................................................................................. 4.2h
C. Length of Detention ...................................................................................................... 4.2i
D. Occupants/Passengers .................................................................................................. 4.3
E. Searches During Detentions .......................................................................................... 4.4a
1. Limited Search of the Occupant(s) for Weapons (Patdowns) ................................ 4.4a
2. Limited Search of the Vehicle for License and Registration ................................. 4.4a
3. Limited Search of the Vehicle for Weapons .......................................................... 4.4c
4. Searches Pursuant to Search Conditions ................................................................ 4.5
SEARCHES INCIDENT TO ARREST .............................................................................. 4.6
A. Incident to Arrest--Persons............................................................................................ 4.6
B. Incident to Arrest--Vehicles .......................................................................................... 4.6
1. Searches Before April 21, 2009 .............................................................................. 4.6c
2. Searches After April 21, 2009 ................................................................................. 4.7
C. The "Contemporaneous" Requirement .......................................................................... 4.8
D. Recent Occupants .......................................................................................................... 4.8
SEARCHES BASED ON PROBABLE CAUSE - THE "AUTOMOBILE
EXCEPTION" ................................................................................................................... 4.8a
A. Parts of the Vehicle ....................................................................................................... 4.8a
B. Closed Containers ......................................................................................................... 4.10
C. Motor Homes................................................................................................................. 4.10d
D. Houseboats .................................................................................................................... 4.10d
E. Bicycles ......................................................................................................................... 4.10d
F. Contemporaneousness ................................................................................................... 4.11
PLAIN VIEW ...................................................................................................................... 4.11
A. Observation After Entry ............................................................................................... 4.11
B. Observation Before Entry............................................................................................. 4.12
C. Random License Plate Checks/Name Checks .............................................................. 4.13
D. Obviously Crime-Related Evidence ............................................................................. 4.14
E. Use of a Flashlight........................................................................................................ 4.14a
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Page
VI.
VII.
VIII.
IX.
X.
XI.
PLAIN SMELL ................................................................................................................... 4.14a
CONSENT .......................................................................................................................... 4.14b
A. Always Ask for Consent ............................................................................................... 4.16
B. Stolen Vehicles .............................................................................................................. 4.16
1. Containers in the Vehicle ........................................................................................ 4.16
2. Consent from the Victim ......................................................................................... 4.17
THE VEHICLE AS EVIDENCE/INSTRUMENTALITY OF A CRIME ......................... 4.17
VEHICLE IMPOUNDS/INVENTORIES .......................................................................... 4.18
A. Impounds ....................................................................................................................... 4.18
B. Inventories ..................................................................................................................... 4.19
C. Other Considerations ..................................................................................................... 4.21
D. Repossessed Vehicles .................................................................................................... 4.22
ABANDONMENT.............................................................................................................. 4.22
EMERGENCY .................................................................................................................... 4.22
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I.
4.1
INTRODUCTION
This chapter discusses the legality of warrantless searches and seizures of vehicles and
persons occupying vehicles. Some important general considerations that apply to this chapter
may be found in the "Introduction" to Chapter 2.
A.
Expectation of Privacy
As with the search of a residence, a person challenging a search or seizure of a vehicle must
have a legitimate expectation of privacy in the vehicle. A claim of ownership may be
insufficient. The same questions asked as to residential searches apply: "(1) did the
defendant manifest a subjective expectation of privacy in the object of the search and (2) is
society willing to recognize the expectation of privacy as legitimate?" (Tolliver (2008) 160
Cal.App.4th 1231, 1239.)
Example:
Villasenor provided the funds for his brother to purchase a load car to transport
cocaine from Texas to California in a large-scale narcotics trafficking operation.
Villasenor disassociated himself from the car in every way possible: he had his
brother purchase the Concorde; he listed his brother's name on the pink slip; and he
did not register the Concorde with the DMV or obtain insurance in his name. Cocaine
was found stashed in a false compartment. HELD: Although Villasenor was the
owner of the car, the Fourth Amendment does not protect an "illegitimate" privacy
interest. Villasenor could not challenge the car search because his "own actions
delegitimitized his privacy interest in the Concorde." (Tolliver (2008) 160
Cal.App.4th 1231.)
II.
DETENTIONS/STOPS
A.
Definition
A temporary "detention" or vehicle "stop" is a "limited seizure" of the driver, that is,
something less than a full arrest but more substantial than a simple "contact" or "consensual
encounter." (Wilson (1983) 34 Cal.3d 777.) A detention exists (1) when you assert authority
over a person in a way that a reasonable innocent person would feel compelled to submit to
and (2) the person in fact submits. (Hodari D. (1991) 499 U.S. 621, 626; Turner (1994) 8
Cal.4th 137, 180.)
Example:
Activating your red light does not constitute a stop or detention until and unless the
driver complies by pulling over. (Smith (9th Cir. 2000) 217 F.3d 746, 751.)
Example:
No detention where officer briefly shined white light into moving car, then followed it
without using red light or siren until driver pulled over on his own. (Rico (1979) 97
Cal.App.3d 124, 128-130; Perez (1989) 211 Cal.App.3d 1492.)
Example:
No detention where officer waited for traffic to clear, then backed up to get a look at
vehicle's rear license plate. When the vehicle then screeched away with squealing
tires, he had a basis to pursue and stop it. (Turner (1994) 8 Cal.4th 137, 180-181.)
Example:
No detention when vehicle you are following pulls over on its own and you have not
activated your emergency (red) lights. (Frank V. (1991) 233 Cal.App.3d 1232, 1237.)
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Example:
No detention to walk up to a driver who was already stopped in his vehicle and ask
(not demand) to see his driver's license. (Gonzales (1985) 164 Cal.App.3d 1194.)
Example:
Pulling in behind parked car and activating patrol car emergency lights is a detention.
(Brown (2015) 61 Cal.4th 968.)
B.
Reasonable Suspicion
A detention is valid if you have "reasonable suspicion" that: (1) something relating to crime
has just happened (or is happening, or is about to happen); and (2) the vehicle or the person in
the vehicle you are about to detain is connected with that activity. (Navarette (2014) 134
S.Ct. 1683; Sokolow (1989) 490 U.S. 1, 7-8; Tony C. (1978) 21 Cal.3d 888, 893.)
Your "reasonable suspicion" must be based on specific facts that you can articulate to a court.
The court will then decide, based on the totality of the circumstances, whether the facts were
enough, objectively, to constitute reasonable suspicion. (Navarette (2014) 134 S.Ct. 1683;
Ramirez (1996) 41 Cal.App.4th 1608.) You cannot make a valid detention based on a hunch,
rumor, intuition, instinct, or curiosity. (Renteria (1992) 2 Cal.App.4th 440, 443.)
Your suspicion may be based on a "wanted flyer" or similar bulletin issued by another
jurisdiction and relating to a completed crime, as long as the other jurisdiction had a
reasonable basis for issuing it and your detention is not impermissibly intrusive. (Hensley
(1985) 469 U.S. 221; Conway (1990) 222 Cal.App.3d 806.)
Note:
Even if the computer information you are relying on is erroneous--e.g,,
indicating an outstanding arrest warrant--your stop would nevertheless be valid
and the evidence would not be suppressed, at least where the mistake was
made by court personnel as opposed to police personnel. (Evans (1995) 514
U.S. 1.) The same is true for DMV errors made by data entry clerks, such as
erroneous information regarding expired registration. (Hamilton (2002) 102
Cal.App.4th 1311; see also Miguel (9th Cir. 2004) 368 F.3d 1150, 1154.)
You may also legally stop a vehicle, even though the driver's identity is unknown, when you
know an arrest warrant exists for the registered owner if the driver "could" be the registered
owner, i.e., you are not aware that he is a different race, sex, etc. (Dominguez (1987) 194
Cal.App.3d 1315, 1317-1318; Williams (1995) 33 Cal.App.4th 467, 476.) It is also legal to
stop a vehicle if your suspicion relates to the passenger only. (William J. (1985) 171
Cal.App.3d 72.)
1.
Traffic Stops
A traffic stop is lawful if based on reasonable suspicion that the motorist has violated the
Vehicle Code or other law; probable cause is not required. (Watkins (2009) 170 Cal.App.4th
1403, 1408; Kodani (1999) 75 Cal.App.4th 471, 476--seatbelt violation; see also Whren
(1996) 517 U.S. 806, 810.) Even a parking violation justifies a detention. (Bennett (2011)
197 Cal.App.4th 907; Choudhry (9th Cir. 2006) 461 F.3d 1097.)
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Example:
4.2a
Officers saw defendant parked on the side of the road texting. Five minutes later, he
was driving in traffic while leaning and looking down and making movements with
his hands for 30 to 40 seconds as if still texting. There was reasonable suspicion of a
violation of Vehicle Code section 23123.5. (Corrales (2013) 213 Cal.App.4th 696.)
As with all offenses, the existence of a Vehicle Code violation is evaluated based on an
objective standard. (Justin K. (2002) 98 Cal.App.4th 695, 699.)
Example:
Driver was stopped for an inoperable rear window brake light. The supplemental light
was required under federal safety standards, but the officer was unaware of the
specific provision. An "officer's reliance on the wrong statute does not render his
actions unlawful if there is a right statute that applies to the defendant's conduct."
(Justin K. (2002) 98 Cal.App.4th 695, 699.)
A command of the Vehicle Code and the ability to provide specific articulable facts in court
can change the outcome of a case if a traffic stop is challenged. For example, in White, an
appellate court determined that it was not objectively reasonable for an officer to believe that
a tree-shaped air freshener hanging on the rearview mirror obstructed the driver's clear view
of the windshield (Veh. Code, § 26708, subd. (a)(2)). (White (2003) 107 Cal.App.4th 636,
647.) The officer in White had not testified that he believed the air freshener reduced the
driver's view or that he had observed a driving pattern suggesting that the driver's view was
impeded; the defense, in contrast, presented testimony from a civil engineer that, based on his
experiments, the small item hanging from the mirror would not obstruct a six-foot-tall driver's
vision. In Colbert (2008) 157 Cal.App.4th 1068, the appellate court held that the same treeshaped air freshener was the basis for a lawful stop because the officer testified to the
precise dimensions of the air freshener and explained how its proximity to the driver's face
actually obstructed his view of distant objects, such as cars or pedestrians.
Further, even when no traffic violation is observed, there can still be a valid basis to detain
and investigate. Sustained and pronounced weaving within a given lane would justify a
detention by an experienced officer for suspicion of DUI. (Perez (1985) 175 Cal.App.3d
Supp. 8, 11-12; Bracken (2000) 83 Cal.App.4th Supp. 1; Russell (2000) 81 Cal.App.4th 96,
104 [drifting around inside a lane justified traffic stop].) Even driving significantly below the
posted speed limit in the presence of an officer without other cause for the reduced speed can
contribute to reasonable suspicion. (Letner (2010) 40 Cal.4th 99, 147.) It would also be
lawful to stop a car being driven at night without lights in a private parking lot simply to
remind the driver to turn on his headlights before entering public streets. (Ellis (1993) 14
Cal.App.4th 1198, 1201-1202.)
"Pretext" Stops. If you have a "hunch" that a vehicle or its occupants are involved in criminal
conduct (such as drug trafficking), but you do not have enough specific information to make a
valid detention to investigate, you may make a traffic stop and see what you can see if: (1)
you have a valid basis for the stop (an actual or suspected violation of the Vehicle Code or
other law) and (2) your actions are consistent with that basis.
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In other words, "pretext stops" are not illegal--the officer's subjective intent or purpose makes
no difference, as long as there is an objective basis for his actions. (Whren (1996) 517 U.S.
806, 813; Suff (2014) 58 Cal.4th 1013, 1054.) "The subjective intent of the law enforcement
officer is irrelevant in determining whether that officer's actions violate the Fourth
Amendment." (Bond (2000) 529 U.S. 334, 338, fn. 2; Whren (1996) 517 U.S. 806, 813;
Sullivan (2001) 532 U.S. 769, 771-772; Robinette (1996) 519 U.S. 33, 38; Letner (2010) 50
Cal.4th 99, 145.)
The only exception to this rule is that the programmatic purpose is relevant in the context of
certain "special needs" or administrative stops or searches conducted without individualized
suspicion, such as checkpoints for impaired driving or drug trafficking and vehicle
inventories. (See Brigham City (2006) 547 U.S. 398, 405; Al-Kidd (2011) 131 S.Ct. 2074.)
Example:
Plainclothes officers in an unmarked car saw two men in a truck lingering at a stop
sign in a "high drug area" for an unusually long time, then make a right turn without
signaling and take off at an "unreasonable" speed. They stopped the truck, supposedly
to warn the driver about traffic violations, and found the passenger holding plastic
bags of crack. The Supreme Court found that "[s]ubjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis." "The Fourth Amendment's
concern with 'reasonableness' allows certain actions to be taken in certain
circumstances, whatever the subjective intent." (Whren (1996) 517 U.S. 806, 813.)
Example:
Narcotics agents radioed marked units and asked them to follow and stop a truck the
agents had been watching in a narcotics investigation. When patrol officers observed
an "unsafe lane change" violation, they stopped the truck, followed their usual routine,
and quickly obtained consent to search. HELD: The stop was valid. "[A] search or
seizure which is reasonable based on the objective facts is not rendered unreasonable
merely because the officer held an improper subjective motivation at the time of the
search." (Uribe (1993) 12 Cal.App.4th 1432, 1436; see also Gomez (2004) 117
Cal.App.4th 531--seat belt violation; Miranda (1993) 17 Cal.App.4th 917, 925-unsignaled left turn; Valencia (1993) 20 Cal.App.4th 906, 914-918--loud muffler.)
Example:
Officers who were instructed to find a reason to stop a vehicle believed to be heading
to a retaliatory gang shooting initiated a traffic stop for tinted windows. The record
substantiated a violation of Vehicle Code section 26708.5, subdivision (a). HELD:
The stop was legal, even if it was a pretext for investigating the occupants'
involvement in gang activity. (Roberts (2010) 184 Cal.App.4th 1149, 1191.)
Be aware that there is a distinction between a so-called pretext stop and a "ruse." A ruse is
where officers lack any legal basis for a stop. If an officer's justification for a car stop is no
more than a ruse--i.e., the officers fabricate the factual basis for the stop--evidence obtained
as a result of the stop will be suppressed. (Rodriguez (2006) 143 Cal.App.4th 1137 [defense
claimed that officers lied about a broken taillight, which, if true, was a "ruse"].)
Temporary Operating Permits. An officer may not stop a vehicle displaying a temporary
operating permit on the sole basis that permits are often forged or invalid: a lawful stop
requires reasonable suspicion that the particular permit is invalid. (Hernandez (2008) 45
Cal.4th 295, 297.)
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4.2c
This is a factual inquiry, and it is therefore critical that you include in your report all of the
circumstances that make you suspect that a permit is invalid. Hunches, rumors, and bare
statistics will be insufficient.
Example:
A sheriff's deputy stopped Hernandez's pickup truck solely because it was being
driven with a temporary operating permit in the rear window and no license plates.
He relied on his experience that operating permits were very often forged or issued for
a different vehicle. HELD: "An officer who sees a vehicle displaying a temporary
operating permit in lieu of license plates may not stop the vehicle simply because he
or she believes that such permits are often forged or otherwise invalid." (Hernandez
(2008) 45 Cal.4th 295.)
A stop will be lawful when you can articulate a suspicion that the vehicle is being driven in
violation of vehicular license requirements. For example, the absence of a temporary permit,
where one is required, is a valid basis for a traffic stop to investigate a violation of Vehicle
Code sections 5200 and 5201. (Raymond C. (2008) 45 Cal.4th 303, 307; see also Dotson
(2009) 179 Cal.App.4th 1045.) A stop is also lawful when you observe expired tags and the
absence of a front license plate, even though the car displays a temporary permit. (Saunders
(2006) 38 Cal.4th 1129; see the compilation of case law in Greenwood (2010) 189
Cal.App.4th 742, 748.)
Example:
At 1:00 a.m., officer saw a minor driving a late-model Acura without license plates or
a temporary operating permit in the rear window. The officer could not see if there
was a temporary permit in the front window. HELD: The stop was lawful. The
officer had reasonable suspicion to believe that the car was being driven in violation
of Vehicle Code sections 5200 and 5201 license requirements. The court specifically
rejected the argument that the officer was required to drive around the vehicle to see
all of the windows before making the stop. (Raymond C. (2008) 45 Cal.4th 303.)
Example:
A DMV records check on a vehicle with a temporary operating permit indicated that
the vehicle registration had expired two years earlier. HELD: The DMV report of the
expired registration without any mention of a valid operating permit justified the
traffic stop. (Greenwood (2010) 189 Cal.App.4th 742, 744.)
2.
Investigative Detentions
Investigatory detentions involving vehicles are based on reasonable suspicion of criminal
activity that may or may not be connected to a traffic offense. (Navarette (2014) 134 S.Ct
1683; Raymond C. (2008) 45 Cal.4th 303, 307.) The suspicion may relate to the driver, the
passengers, or the vehicle. As with traffic stops, courts look to the "totality of the
circumstances" in evaluating reasonable suspicion. (Arvizu (2002) 534 U.S. 266.)
Example:
Officers investigating a "grand theft person" report around midnight saw a car drive
past a nearby school and blink its headlights several times. Another car, parked in the
school parking lot, blinked back and then followed the first car away. HELD: The
officers, who were aware of school burglaries and gang activities in the area, could
lawfully detain both vehicles. (Leyba (1981) 29 Cal.3d 591, 598-600.)
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Example:
An officer saw an unfamiliar van driving slowly in a circle through a residential
neighborhood at 1:30 a.m. HELD: Stop of the van was legal because (1) its speed
and route were suggestive of a "casing" operation; (2) the officer, who was very
familiar with the neighborhood, its vehicles and local driving patterns, did not
recognize the van; and (3) he knew that many residential and auto burglaries had
occurred in that neighborhood and that vans were often used in the burglaries.
(Remiro (1979) 89 Cal.App.3d 809.)
Example:
There was reasonable suspicion to justify a vehicle stop because (1) the passenger
physically resembled a wanted murder suspect in several respects, (2) the car was in a
neighborhood frequented by the suspect, (3) the vehicle was a rental car from a
different state where the suspect reportedly had been seen, and (4) the passenger
attempted to hide his face when the officer pulled up next to his car. (Monroe (1993)
12 Cal.App.4th 1174, 1194.)
Example:
Because a robbery involving two armed African-American men wearing dark clothing
with hoods had just occurred five to seven minutes away on Coronado Island, it was
reasonable for an officer to anticipate that a car would be used to facilitate the escape
and therefore to stop a car that was traveling away from the crime scene on one of two
logical escape routes from Coronado and occupied by three African-American males
who fit the general description and the two passengers tried to conceal themselves
from his marked police unit. (Overten (1994) 28 Cal.App.4th 1497, 1504-1505; but
see Bates (2013) 222 Cal.App.4th 60--no reasonable suspicion to stop a car unrelated
to either the robbery or the named suspect two hours after crime in a location adjacent
to the suspect's residence but only reason given was that "there were people in the
car." )
Example:
Officers, who arrived quickly at the scene of reported reckless motorcycle driving and
saw no other vehicles except a motorcycle pulling away from a house, had a sufficient
basis to detain it. (Frank V. (1991) 233 Cal.App.3d 1232, 1238, fn. 2.)
Example:
Expert officers watching a chemical supply house observed an individual load what
appeared to be ether into a Ford LTD and (after meeting another vehicle and engaging
in counter surveillance tactics) drive to a remote desert goat ranch that was ideally
situated for the manufacturing of drugs and whose owner had been arrested three
months earlier for manufacturing PCP there. These facts (plus a few other details)
provided an ample basis to detain both vehicles. (Jackson (1990) 218 Cal.App.3d
1493; Carvajal (1988) 202 Cal.App.3d 487--report of narcotics activity from a reliable
informant combined with observations during surveillance justified vehicle stop.)
Example:
Robbery victim identified one of his two attackers as Valles, a gang member. At
Valles' house about two hours later, an officer watched Renteria drop Valles off.
Valles seemed nervous, and he appeared to try to hide something before giving the
concealed object to Renteria. Renteria was stopped when he drove away. HELD: It
was legal to detain Renteria as the possible second robber, even though it was also
possible that he was not involved in the crime. (Renteria (1992) 2 Cal.App.4th 440.)
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4.2e
Example:
A Border Patrol agent lawfully stopped a minivan on an unpaved backroad in southern
Arizona based on reasonable suspicion of smuggling activity. The agent had received
a radio report that two "intrusion" sensors had been activated on a road used by
smugglers to avoid border patrol highway checkpoints. The timing of the radio report
coincided with a Border Patrol shift change that reduced the number of roving patrols
on the backroads. The agent intercepted the minivan and watched the driver slow
dramatically from 50-55 mph to 25-30 mph. The driver appeared stiff with rigid
posture, and he would not look at the agent. The knees of the two children in the rear
seat were unusually high, as if their feet were propped up on cargo. When the agent
began to follow the minivan, which was a type of vehicle commonly used by
smugglers, all three children in the van simultaneously raised their hands to wave at
the agent in an abnormal pattern for four or five minutes as if instructed to do so. The
driver abruptly turned onto the last road that would have allowed him to bypass the
checkpoint. The road was suitable for four-wheel-drive vehicles, not a minivan, and it
would not have led to a family picnic or sightseeing area. A registration check
indicated that the minivan was registered to an address in Douglas, Arizona, in an area
notorious for alien and narcotics smuggling. The agent stopped the van and obtained
consent to search; he found 128 pounds of marijuana. HELD: The stop was lawful.
The agent was entitled to assess the situation in light of his specialized training and
familiarity with the customs of the area inhabitants. "We think it quite reasonable that
a driver's slowing down, stiffening of posture, and failure to acknowledge a sighted
law enforcement officer might well be unremarkable in one instance (such as a busy
San Francisco highway) while quite unusual in another (such as a remote portion of
rural southeastern Arizona)." (Arvizu (2002) 534 U.S. 266; see also Tiong (9th Cir.
2000) 224 F.3d 1136, 1138-1141.)
Example:
Two hours after heavy rains, an officer on patrol at midnight noticed a red Ford
Fairmont with beads of water on its exterior similar to cars parked in the area but
unlike the dry cars traveling on the roads. The officer surmised that the Ford must
have been driven only a short distance from the area, where there had been car thefts
from the downtown lots, including the Ford dealership. A license check indicated that
the vehicle was registered to a private party and had not been reported stolen. When
the Ford merged onto the freeway, it kept its speed at 40 miles per hour, well below
the posted 55 mph limit. The patrol car was the only other vehicle in sight, and the
officer did not hear engine noise consistent with mechanical problems. Concerned
that the slow speed might indicate an intoxicated driver, he followed the Ford for one
mile before initiating a traffic stop. HELD: The stop was supported by sufficient
specific articulable facts to investigate whether the men in the car had been involved
in criminal activity, including car theft, and were trying to avoid apprehension. The
officer's subjective reason for the stop--mainly suspicion of intoxicated driving--was
irrelevant. (Letner (2010) 50 Cal.4th 99.)
Example:
At 3 a.m., two minutes after the report of a residential burglary in progress, it was
legal to stop a car leaving the area even though the officer had no description of the
two suspects and did not know if they had a car, where there was no other vehicular or
foot traffic. (Conway (1994) 25 Cal.App.4th 385, 390.)
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Anonymous Tips/9-1-1 Calls
An anonymous telephone tip may not be sufficient to justify a traffic stop if the tip lacks
indicia of reliability. (J.L. (2000) 529 U.S. 266.) What is required is some basis for believing
that the tip is worthy of belief. Corroboration of seemingly "innocent" facts may suffice, at
least when they involve predicting future behavior. (White (1990) 496 U.S. 325; PinelaHernandez (9th Cir. 2001) 262 F.3d 974, 978; see Dolly (2007) 40 Cal.4th 458--detention
valid even though officer could corroborate only non-crime details regarding driver of a
parked car reported to have committed an assault with a firearm.)
Example:
Police received an anonymous telephone tip that Vanessa White would be leaving a
described address at a given time in a brown Plymouth station wagon with a broken
right taillight lens, that she would be going to Dobey's Motel, and that she would be in
possession of about an ounce of cocaine inside a brown attache case. Officers went to
the address, observed a car that matched the description, saw a woman come out of the
described residence at approximately the anticipated time, not carrying anything, and
drive toward Dobey's Motel. The U.S. Supreme Court held that this corroboration
made the tip sufficiently reliable to provide reasonable suspicion to detain. (White
(1990) 496 U.S. 325; see also Pinela-Hernandez (9th Cir. 2001) 262 F.3d 974, 978.)
Example:
At 1:43 a.m., CHP dispatch reported a possibly intoxicated driver "weaving all over
the roadway" in a '80s model blue van traveling northbound on Highway 99. An
officer who was less than four miles from where the van was seen positioned himself
on the shoulder of Highway 99 to intercept the van. He stopped the van two to three
minutes later. He did not observe any weaving, speeding, or other violation of traffic
laws before initiating the stop. HELD: The anonymous tip of a possible intoxicated
driver "weaving all over the roadway" combined with the officer's spotting the
described vehicle at the expected time and place provided reasonable suspicion to
justify an immediate stop to protect the driver and other motorists. (Wells (2006) 38
Cal.4th 1078.)
9-1-1 calls, unlike "anonymous" calls, require a somewhat different analysis. The reason is
that, today, 9-1-1 calls are not truly anonymous. They are recorded, which allows
investigators or victims of a false tip to identify a caller who would be criminally liable for
falsely reporting a crime. Additionally, for 9-1-1 calls from cell phones, the caller's phone
number is relayed to 9-1-1 dispatchers and cell phone service carriers are required to identify
a caller's geographic location. These technological and regulatory developments allow
reasonable officers to rely on information reported in a 9-1-1 call. (Navarette (2014) 134
S.Ct. 1683.)
Example:
CHP received an "anonymous" 9-1-1 call identifying a pickup truck that ran the caller
off the road on Highway 1. The truck was stopped southbound on Highway 1
approximately 18 minutes after the call even thought the officer did not personally
observe impaired driving. HELD: The 9-1-1 call was sufficient to provide the officer
with reasonable suspicion that the driver had committed a traffic offense in running
another car off the road. The officer was not required to allow a possibly impaired
driver a second chance for dangerous conduct. (Navarette (2014) 134 S.Ct. 1683.)
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Example:
4.2g
An unidentified 9-1-1 caller reported that a light-skinned African-American male with
a bandaged left hand who was sitting in the driver's seat of a parked gray Maxima
pulled a gun on the caller after mentioning a gang name. The caller was afraid to give
his name because of possible retribution. HELD: The investigative detention was
lawful. The 9-1-1 call was a firsthand report of violent criminal conduct requiring
immediate investigation to protect public safety; the call was recorded; the caller, who
had given a reason for remaining anonymous, reported immediate and detailed facts;
and the police responded within minutes. (Dolly (2007) 40 Cal.4th 458, 461.)
Note that even a truly anonymous report concerning drunk or reckless driving will justify a
brief detention if the report is made contemporaneously and the car is still being driven on a
public roadway because the grave risks to public safety justify a brief investigatory stop.
(Wells (2006) 38 Cal.4th 1078; Lowry (2005) 129 Cal.App.4th 926.)
4.
"Community Caretaking" and "Special Needs"
Although the usual basis for stopping a vehicle is reasonable suspicion of criminal activity,
there are additional grounds under very specific circumstances.
For example, one California appellate court has recognized that the "community caretaking"
exception, which encompasses the "emergency aid" doctrine, can provide a basis for a lawful
stop of a vehicle. Applying this exception, an officer can stop a vehicle to ensure the safety
of its occupants if the objective facts provide a reasonable basis for believing that a person in
the vehicle is ill or injured. (Madrid (2008) 168 Cal.App.4th 1050.) For a full discussion of
the "Community Caretaking" doctrine, see Chapter 3-IV-A-2.
Example:
A patrol officer observed a man, who was walking with an "unsteady" gait and
sweating, stumble and break his fall with a nearby shopping cart. The man walked 50
feet to a parked Toyota and entered the passenger side. As the Toyota started to leave,
the officer drove over and blocked it with his patrol car. HELD: Although the court
recognized that the "community caretaking" doctrine would have allowed a detention
of the vehicle to investigate the passenger's welfare, the stop of the vehicle in this case
was not reasonable based on the totality of the circumstances. (Madrid (2008) 168
Cal.App.4th 1050.)
A vehicle also may be stopped, without reasonable suspicion, based on the state's special need
for an administrative search or seizure.
Example:
A game warden observed Maikhio fish off a public pier when it was unlawful to be
fishing for lobster and place something he caught in a bag. The warden stopped
Maikhio's car a few blocks from the pier. HELD: Suspicionless stops, including
vehicle stops, of anglers and hunters are lawful administrative seizures required to
meet the special and important state needs distinct from the state's ordinary interest in
enforcing the criminal code. (Maikhio (2011) 51 Cal.4th 1074.)
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"Mistake of Law"
A "mistake of law" is a misunderstanding of the terms or operation of a controlling statute or
local ordinance. A "mistake of law" is distinguishable from a "mistake of fact."
Historically, appellate decisions in California held that suspicion founded on a mistake of law
could not constitute a reasonable basis for a traffic stop, although some courts would consider
whether a mistake of law was objectively reasonable. (Compare Reyes (2011) 196
Cal.App.4th 856, Ramirez (2006) 140 Cal.App.4th 849, 854, and White (2003) 107
Cal.App.4th 636, 644, with Glick (1988) 203 Cal.App.3d 796, 801-804.)
The United States Supreme Court has now determined that a lawful detention can be based on
a reasonable mistake of law. (Heien (2014) 135 S.Ct. 530.) Because the test under the Fourth
Amendment centers on reasonable police conduct, a reasonable mistake of law bears the same
consideration as a reasonable mistake of fact. It should be emphasized that the mistake of law
must be objectively reasonable: an officer's subjective belief is irrelevant.
Example:
A North Carolina sheriff's sergeant stopped a driver for a faulty right brake light, and a
subsequent consent search led to the discovery of cocaine in the passenger's duffel
bag. The appellate court reversed the drug trafficking conviction on the ground that
the stop was based on a mistake of law concerning the need for two operable brake
lights. The Supreme Court held that an officer's objectively reasonable mistake of
law--such as the apparent misunderstanding that two operable brake lights were
required in North Carolina--did not invalidate the traffic stop. "Reasonable suspicion
arises from the combination of an officer's understanding of the facts and his
understanding of the relevant law. The officer may be reasonably mistaken on either
ground." (Heien (2014) 135 S.Ct. 530; see Campuzano (2015) 237 Cal.App.4th Supp.
14--Heien applied to an ambiguous city ordinance prohibiting bike riding on
sidewalks in commercial areas.)
Also, even if an officer's mistake of law is found to be unreasonable, it will never result in the
suppression of evidence if objectively reasonable suspicion exists to justify the detention
despite the misunderstanding. (See Devenpeck v. Alford (2004) 543 U.S. 146--same rule
applies to arrests.) "[A]n officer's reliance on the wrong statute does not render his actions
unlawful if there is a right statute that applies to the defendant's conduct." (Justin K. (2002)
98 Cal.App.4th 695, 699-700.)
6.
Attenuation
In Brendlin II, the California Supreme Court made clear that an unlawful traffic stop does not
always result in the suppression of evidence. Absent purposeful or flagrant misconduct,
courts will consider whether the evidence obtained was attenuated from the lawful conduct or
whether the "chain of causation" was interrupted by an intervening circumstance. (Brendlin
(2008) 45 Cal.4th 262, 265.) This "no taint" rule is discussed fully in Chapter 2-III-B-3.
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Example:
C.
4.2i
A patrol deputy saw Carter, who matched the description of the suspect in a robbery
of a nearby fast food restaurant, riding in a car with illegally tinted windows. The
deputy stopped the car for the Vehicle Code violation and discovered that Carter was
wanted on an outstanding warrant. While transporting Carter to the sheriff's station,
the deputy arranged a field identification by a witness to the robbery. Carter claimed
on appeal that an unlawful traffic stop tainted the field identification. Rejecting his
claim, the appellate court held that the car was lawfully stopped for a traffic violation
and found that the deputy's discovery of the arrest warrant would have attenuated any
taint of an improper traffic stop. (Carter (2010) 182 Cal.App.4th 522, 529-530.)
Length of Detention
A routine traffic stop "must be temporary and last no longer than is necessary to effectuate the
purpose of the stop." (Royer (1983) 460 U.S. 491, 500; Bell (1996) 43 Cal.App.4th 754,
761.) Typically, this means no longer than the time it takes to perform the duties necessary to
warn the driver or issue a citation. A detention "justified solely by the interest in issuing a
warning ticket to the driver can become unlawful if it is prolonged beyond the time
reasonably required to complete that mission." (Caballes (2005) 543 U.S. 405, 407.)
It is impossible to set an absolute time limit for a reasonable detention because it depends
totally on the circumstances. For example, a 20-minute detention might be reasonable under
one set of circumstances but not under another. (Dasilva (1989) 207 Cal.App.3d 43, 50; Soun
(1995) 34 Cal.App.4th 1499, 1519-1520.)
The key is whether or not "the police diligently pursued a means of investigation reasonably
designed to confirm or dispel their suspicions quickly." (Sharpe (1985) 470 U.S. 675, 686688; Russell (2000) 81 Cal.App.4th 96, 102.)
The Supreme Court has noted that an officer's ordinary investigation includes checking the
driver's license, checking for outstanding warrants, and inspecting the registration and proof
of insurance. (Rodriguez (2015) 135 S.Ct. 1609; see Strieff (2016) 136 S.Ct. 2056--checking
for warrants recognized as an officer safety precaution.) California cases have traditionally
found that a routine traffic stop allows a radio or computer check on the vehicle and/or the
driver, so long as "the check does not unreasonably prolong the detention." (Brown (1998) 62
Cal.App.4th 493, 498; McGaughran (1979) 25 Cal.3d 577, 584-587; Castaneda (1995) 35
Cal.App.4th 1222, 1227; Valencia (1993) 20 Cal.App.4th 906, 918.)
Other investigative activities are also permissible as long as they do not prolong the stop
beyond the time it would otherwise take. (Gallardo (2005) 130 Cal.App.4th 234, 238.) For
example, questioning the driver on matters unrelated to the reason for the traffic stop is
allowed as long as the questioning does not unduly prolong the detention. (Mendez (9th Cir.
2007) 476 F.3d 1077, 1080; see Johnson (2009) 555 U.S. 323, 325--the officer's inquiries
may not "measurably extend the duration of the stop.")
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Example:
Mendez's car was stopped for failure to display a visible license plate or registration
tag. While one officer ran a records check, the other asked Mendez questions related
to gang membership and unrelated to the purpose of the traffic stop. Mendez, a
convicted felon, admitted that he had a firearm in the driver's door handle. HELD:
The officer's questioning leading to the discovery of the weapon did not prolong the
traffic stop. (Mendez (9th Cir. 2007) 476 F.3d 1077, 1080 [applying Muehler v. Mena
(2005) 544 U.S. 93 to traffic stops]; accord, Turvin (9th Cir. 2008) 517 F.3d 1097,
1101--officer stopped writing his ticket for a few moments to ask the driver questions
unrelated to the traffic stop.)
You should keep in mind that once the reason for the stop has been resolved or disappears, or
if you have finished issuing a citation or warning without discovering anything providing
independent suspicion for a continuing detention, the justification for the detention is over
and the driver must be free to go.
Example:
An officer on routine patrol stopped two young African-American males because he
considered their presence in the neighborhood to be suspicious and also because he
wanted to check out their vague resemblance to the description of suspects in some
recent robberies. He waited until he observed a violation of the Vehicle Code and
then stopped their car. Even though everything checked out and he discovered
nothing suspicious, the officer prolonged the detention, patted-down the men,
obtained consent to search in an effort to further investigate the robbery connection,
and eventually discovered cocaine. HELD: The traffic detention was initially proper
but was illegally prolonged, and there was an insufficient basis to detain based on a
possible connection with the robberies. The cocaine was therefore discovered
illegally and had to be suppressed. (Williams (1985) 168 Cal.App.3d 349.)
Example:
A Nebraska officer stopped a car for driving on the shoulder, completed a written
warning, and returned the driver's and passenger's documents (licenses, registration,
proof of insurance). At that point, the officer had the driver step out of the car while a
narcotics detection dog walked around the car. HELD: The dog sniff was not lawful
because the driver was detained after completion of the traffic stop. (Rodriguez
(2015) 135 S.Ct. 1609.)
On the other hand, if, before the original detention has been resolved, (1) you have obtained
the detainee's valid consent for a continuation of the detention, for instance, while you search
his vehicle, or (2) you have developed reasonable suspicion about some other or different
offense, then you are permitted to extend the detention, i.e., you may take a reasonable
amount of additional time to check out this possible other crime as well. (Rojas-Millan (9th
Cir. 2000) 234 F.3d 464, 469-470--license plate and possible stolen vehicle concerns
escalated to possible drug transportation; Suennan (1980) 114 Cal.App.3d 192--officer
observed marijuana roaches; Valencia (1993) 20 Cal.App.4th 906, 918--inconsistent
information indicated possible stolen vehicle; Ellis (1993) 14 Cal.App.4th 1198, 1200--driver
was under the influence.)
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Example:
Officer stopped vehicle for possible DUI but eventually concluded the driver was not
under the influence. By the time he reached this conclusion, however, the officer had
already developed reasonable suspicion that the driver was transporting narcotics,
based on a very strong masking odor in the vehicle, contradictory answers by the two
occupants about their destination and purpose, etc. Therefore, it was proper to extend
the detention to investigate this possible "other" offense. (Russell (2000) 81
Cal.App.4th 96.)
Example:
Officer validly stopped a vehicle for suspicion of displaying fictitious plates. He was
also concerned about the vehicle possibly being stolen. Although the driver produced
a valid Oregon driver's license and vehicle registration, there was a strong "masking"
odor of perfume coming from inside the car, and both the driver and passenger gave
vague and somewhat conflicting accounts of their purpose and destination. While
running further checks, the officer obtained consent to search. HELD: The officer's
conduct was lawful. The short additional detention was justified, and the consent was
voluntary. (Rojas-Millan (9th Cir. 2000) 234 F.3d 464, 469-470.)
Example:
An officer made a valid traffic stop of a vehicle he suspected might be occupied by
two armed robbers and called for backup. When the occupants got out of their
vehicle, one was recognized as a "known burglar" and a "white tennis bag" that had
been used in the robbery was observed in plain view. HELD: Everything was legal
because additional suspicious circumstances came to light during the traffic stop
without the officers having prolonged the detention or made any separate investigation
or intrusion. (Franklin (1985) 171 Cal.App.3d 627.)
Example:
Detention of a driver stopped for speeding was not prolonged based on need to verify
driver's compliance with § 290 registration requirements, information from another
officer that driver was selling narcotics and firearms, and observation of furtive
movement at the time of the stop--all of which provided reasonable suspicion of
independent criminal activity. (Espino (2016) 247 Cal.App.4th 746.)
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Example:
Note:
Officer made a stop for speeding and then became suspicious that the vehicle might be
stolen or involved in transporting drugs. After informing the driver that he was not
going to issue a citation, the officer asked him to step back to the patrol car, invited
him to sit inside (due to the weather), then questioned him for about 20 minutes before
securing a consent to search the car, which turned up drugs. HELD: The 20-minute
detention was not excessive in duration or scope and did not amount to a de facto
arrest, no Miranda warnings were necessary, and the consent was voluntary. (TorresSanchez (9th Cir. 1996) 83 F.3d 1123, 1127-1130.)
Only violations of the federal Constitution can result in the suppression of
evidence. The Fourth District Court of Appeal held that a prolonged detention
for a traffic violation (seat belt violation), which resulted in a de facto arrest,
did not require the suppression of evidence because an arrest was supported by
probable cause. The fact that the California seat belt law is classified as a citeand-release offense had no bearing on whether the de facto arrest, fully
supported by probable case, violated the Fourth Amendment. (Gomez (2004)
117 Cal.App.4th 531.)
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D.
4.3
Occupants/Passengers
The Supreme Court has held that in all traffic stops the driver and the passengers are seized
and all persons in the car can therefore challenge the constitutionality of the stop. (Brendlin
(2007) 551 U.S. 249.) The detention of the occupants "ordinarily continues, and remains
reasonable, for the duration of the stop." (Johnson (2009) 555 U.S. 323, 333; see Hoyos
(2007) 41 Cal.4th 872, 894.)
The courts acknowledge the risks associated with traffic stops and have recognized your need
to control the occupants' movements. In all cases, you have the right to order the driver to get
out of the vehicle. You do not need any particular reason, such as danger or suspicion of a
crime. This is because the courts believe that all traffic stops involve enough inherent risk to
justify the minimal additional intrusion of ordering a validly detained driver to get out of the
vehicle. (Mimms (1977) 434 U.S. 106; Maxwell (1988) 206 Cal.App.3d 1004; Valencia
(1993) 20 Cal.App.4th 906, 918; Miranda (1993) 17 Cal.App.4th 917, 927.)
Note:
You may order the driver to step out of his vehicle even though you have
already (previously) decided to release him with just a warning but no citation.
This is so because your subjective thinking plays no role in what you are
objectively authorized to do. (Robinette (1996) 519 U.S. 33, 38.)
The same rule applies to passengers: an officer may order passengers out of the car pending
completion of a traffic stop. "[T]he same weighty interest in officer safety is present
regardless of whether the occupant of the stopped car is a driver or passenger." "[D]anger to
an officer from a traffic stop is likely to be greater when there are passengers in addition to
the driver in the stopped car. While there is not the same basis for ordering the passengers out
of the car as there is for ordering the driver out, the additional intrusion on the passenger is
minimal." (Wilson (1997) 519 U.S. 408, 414-415; Saunders (2006) 38 Cal.4th 1129, 11341135; Hoyos (2007) 41 Cal.4th 872, 892.) Therefore, it is always reasonable to order
passengers out for the sake of your safety in every traffic stop. (Lomax (2010) 49 Cal.4th
530, 564.)
You may also order a passenger to remain inside or get back into the vehicle. (Vibanco
(2007) 151 Cal.App.4th 1, 14; Castellon (1999) 76 Cal.App.4th 1369, 1374; Williams (9th
Cir. 2005) 419 F.3d 1029, 1034.)
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Example:
When neither the driver nor the passenger could produce a valid license after a traffic
stop, the officer ordered them out of the car so that he could conduct an impound
inventory. Within a minute, the officer found a gun magazine under the driver's seat
cover. HELD: The passenger's detention outside the car was lawful as a "brief
continuation" of the initial detention for officer safety. (Hoyos (2007) 41 Cal.4th 872,
893-894.)
As to identification, merely asking a passenger detained after a car stop for identification does
not amount to a "separate 'detention' requiring separate justification." (Vibanco (2007) 151
Cal.App.4th 1, 14; Grant (1990) 217 Cal.App.3d 1451.) (See "Identification" discussion, Ch.
2-III-D.)
Example:
For purposes of officer safety following a traffic stop, defendant was first ordered to
stay in the car and then ordered to get out and sit on the curb with the other
passengers. While he was still detained, the officer asked him for identification.
HELD: The request for identification was not an "additional seizure" under the Fourth
Amendment. (Vibanco (2007) 151 Cal.App.4th 1.)
Also, you must be sure that the request for identification does not prolong the passenger's
detention. A prolonged detention would amount to an additional seizure requiring separate
justification. (Vibanco (2007) 151 Cal.App.4th 1, 14.)
Unlike a driver or registered owner, a passenger cannot automatically challenge the seizure of
evidence found in a search of a vehicle. To bring a suppression motion, a passenger must first
establish a property or possessory interest in the car or the property seized. (Valdez (2004) 32
Cal.4th 73, 122 [passenger lacked a reasonable expectation of privacy in the area under the
driver's seat]; Rakas (1978) 439 U.S. 128, 148; see also Pulliam (9th Cir. 2005) 405 F.3d 782,
786.) Note, however, that passengers do have a means of challenging a car search if they can
assert that the car search was the fruit of their detention as a passenger. (Brewer (2017) 16
Cal.App.5th 1019.)
Example:
Richmond officers on patrol saw a Dodge Grand Caravan in the parking lot of an
apartment complex claimed by the Manor Boyz in a high-crime area. Brewer, who
was sitting in the rear of the van, immediately ducked down behind the driver's seat
when the officers approached. The officers told Brewer to get up and put his hands
up, but it took several orders for him to comply. Marijuana was found in plain view in
the front passenger's possession, and a Glock was under the driver's seat near Brewer.
HELD: Brewer could challenge the search of the car as fruit of his detention even if
he could not establish a reasonable expectation of privacy (standing) in the van.
(Brewer (2017) 16 Cal.App.5th 1019.)
For a discussion of the arrest of passengers, see Chapter 2-IV-G-1.
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E.
4.4a
Searches During Detentions
In general, you may not conduct a full search either of the vehicle or of its occupants during a
traffic stop or investigative detention. This is because you only have "reasonable suspicion"
to detain and lack "probable cause" to arrest or search. (Terry (1968) 392 U.S. 1; Orozco
(1981) 114 Cal.App.3d 435.) There are, however, three exceptions.
1.
Limited Search of the Occupant(s) for Weapons (Patdowns)
The rule for patting down (frisking) the driver or other occupant does not change just because
the person is (or has just been) in a vehicle, as opposed to the street. You are permitted to
conduct a limited search of the driver or other occupant for weapons or objects that could be
used as a weapon if you have specific facts indicating that the individual may be armed
and dangerous. (Johnson (2009) 129 S.Ct. 781; see also Knowles (1998)525 U.S. 113, 117118.)
Example:
Officer made a DUI stop at night for erratic driving. The driver gave false
identification, admitted he had recently done time for robbery, and was wearing a
bulky jacket that he had trouble keeping his hands out of. HELD: It was legal to
order him out, pat him down, and remove what felt like syringes from his jacket
pockets. (Autry (1991) 232 Cal.App.3d 365; see also Mimms (1977) 434 U.S. 106,
112--bulge under sports coat was enough.)
Example:
Collier was a passenger in a car stopped because the front license plate was missing.
Officers could spell a strong odor of marijuana in the car, and one officer asked
Collier to step out of the car. Collier, who was taller than the officer, was wearing
baggy clothing that could conceal a weapon--baggy shorts that hung down to his
ankles with a large untucked shirt hanging over the shorts. HELD: Collier's attire and
the need to conduct a further search of the car for marijuana justified a limited
patdown search for weapons. (Collier (2008) 166 Cal.App.4th 1374.)
Example:
Officers could not further detain and frisk driver based solely on location of traffic
stop in high-crime area at midnight. (Medina (2003) 110 Cal.App.4th 171.)
See the expanded discussion of patdowns/frisks in Chapter 2, section III-I.
2.
Limited Search of the Vehicle for License and Registration
During any vehicle stop, you are entitled to see and examine the driver's license and the
vehicle's registration. (Arturo D. (2002) 27 Cal.4th 60; Webster (1991) 54 Cal.3d 411, 430;
Hart (1999) 73 Cal.App.4th 852, 860.) The same is true of any other document that certain
vehicles may be required to carry or possess, such as, for example, a "load order" for hay
wagons. (Kenway (1990) 219 Cal.App.3d 441.)
If the driver does not have the required document on his or her person but indicates where it is
located inside the vehicle, you may retrieve it yourself if the driver has no objection, or if
doing so is reasonably necessary for your safety. (Webster (1991) 54 Cal.3d 411, 430; Ingle
(1982) 129 Cal.App.3d 188; Martin (1972) 23 Cal.App.3d 444; Hart (1999) 73 Cal.App.4th
852, 863-864--lawful to look in woman's purse for her ID.)
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Example:
It was proper for the officer, out of concern for his safety and the need to control the
occupants, to personally retrieve the driver's license, which the driver said was in the
glove compartment, following a 2:00 a.m. stop for erratic driving, where one of the
passengers appeared to be under the influence and the other was boisterous and
mouthy. (Faddler (1982) 132 Cal.App.3d 607, 610.)
Indeed, in any vehicle detention situation where the driver, upon your request, "fails to
produce" the necessary documentation, you have the right to conduct a limited search for the
driver's license or identification and/or the vehicle registration. Furthermore, this search-which must be carried out before you issue the citation--is not restricted to "traditional
repositories," such as a glove compartment or a sun visor, but rather may include any area
within the vehicle where such documentation reasonably may be expected to be found.
(Arturo D. (2002) 27 Cal.4th 60.) Note that this area would normally not include the
vehicle's trunk.
Example:
Minor stopped for speeding was unlicensed and failed to provide evidence of his
identity, proof of insurance, or vehicle registration. Prior to issuing a citation, the
officer felt under the driver's seat for documentation relating to the driver or the truck.
From a position behind the driver's seat, the officer then looked under the seat and
found a glass pipe and a box containing a vial with a white powder residue. HELD:
The seizure of the pipe and vial was valid. The area under the front seat, unlike an
area such as the trunk, is a location where the documents reasonably may be expected
to be found. (Arturo D. (2002) 27 Cal.4th 60.)
Example:
Driver stopped for unsafe lane changes denied having his license or any
documentation concerning the car. The officer searched in the glove compartment,
under the driver's seat, and under the front passenger's seat, where he found a wallet
containing the driver's identification and a baggie of methamphetamine. HELD: The
search for documents and the seizure and search of the wallet were valid. (Arturo D.
(2002) 27 Cal.4th 60--regarding defendant Hinger; see also Turner (1994) 8 Cal.4th
137, 181.)
Note:
In Arturo D., the state Supreme Court also noted that Vehicle Code section
2805 (permitting inspection of the title or registration) has been interpreted
broadly to include virtually any peace officer conducting a traffic stop.
(Arturo D. (2002) 27 Cal.4th 60, 69, fn. 5.)
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Example:
4.4c
Officer, who had made a speeding stop and lawfully ordered everyone out, could
lawfully search the glove compartment and visor for registration because driver had
no license, denied ownership, and said the other occupants were hitchhikers. When
the officer observed a wallet on the front seat, it was proper to seize it and, after
everyone denied owning it, to open it to determine its owner. (Webster (1991) 54
Cal.3d 411, 428-430.)
Also, the United States Supreme Court has held that whenever you have made a lawful
vehicle stop, you have the right to inspect the VIN. If the VIN is not visible from outside or
not voluntarily disclosed by the driver, you may enter the vehicle to the extent necessary
(such as removing papers from the dashboard) to read it. (Class (1986) 475 U.S. 106.)
3.
Limited Search of the Vehicle for Weapons
Just as you may lawfully conduct a limited search (frisk or patdown) of a person for a weapon
when you have specific facts indicating some possible danger to you, it is also proper for you
to enter a vehicle during a detention to conduct a limited search for weapons in situations
where the circumstances justify it. (Long (1983) 463 U.S.1032; Lafitte (1989) 211
Cal.App.3d 1429; see also Molina (1994) 25 Cal.App.4th 1038, 1042.)
In other words, although you may not conduct a full search of a vehicle during a detention,
you are entitled to conduct a limited, protective search of the passenger compartment in
areas where a weapon could be placed or hidden if you believe, based on specific facts, that
the suspect is dangerous and may gain immediate access to a weapon. (Long (1983) 463
U.S. 1032; see Schmitz (2012) 55 Cal.4th 909, 927, fn. 18.)
In Long, the driver--who had been detained for erratic driving--got out of his car as the
officers approached. When asked for his registration, he headed back to his open car in which
the police had seen a knife lying on the floorboards. Under these circumstances, it was
reasonable to conduct a quick weapons search of the passenger compartment before allowing
the driver to reenter the vehicle. During the search, the police found marijuana.
The Court stressed that "our decision does not mean that the police may conduct automobile
searches whenever they conduct an investigative stop." (Long 463 U.S. 1032, 1050, fn. 14.)
You need facts making it reasonable to believe that the suspect presents a potential danger to
you and that he is either about to reenter the vehicle (e.g., to obtain registration or perhaps
because the detention is over and he is about to leave) or is close enough to it that he could
break away from police control and grab a weapon from inside the vehicle. (See also Lafitte
(1989) 211 Cal.App.3d 1429, permitting a limited weapons search based solely on the
observation of a legal sheathed knife on the open glovebox door.)
Remember, always be careful not to conduct a further, full search of the vehicle unless you
have a valid consent or your suspicion rises to the level of "probable cause."
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4.4d
SEARCH AND SEIZURE - VEHICLES
Example:
An officer encountered two men in a car parked in a dark area behind a 24-hour
market. Upon recognizing one of them as a recent arrestee for possession of drugs
and a dangerous weapon, the officer became alarmed for his safety. Under the
circumstances, his alarm justified a limited search of the passenger compartment.
(Brueckner (1990) 223 Cal.App.3d 1500, 1506.)
Example:
At 10 p.m., two San Diego officers stopped a Datsun for expired registration tags. As
the officers approached the occupants, they saw the driver reach under the seat and
heard the sound of metal on metal. Fearing for their safety because of the increased
gang activity in the area, the officers ordered the occupants out of the car, checked for
weapons under the seat, and found a loaded .25 semiautomatic handgun. The court
upheld the limited weapons search under the circumstances. (King (1989) 216
Cal.App.3d 1237.)
Example:
A pickup truck was stopped at a combination agricultural and Fish and Game
checkpoint near the Oregon/California border. The driver said his ducks and weapons
were in the back, but when he stepped out to display the waterfowl, a cocked ninemillimeter pistol fell to the seat. HELD: A protective search of the cab for additional
weapons was justified under Long. (Perez (1996) 51 Cal.App.4th 1168, 1178-1179.)
Example:
A limited search of the passenger compartment for weapons was upheld where the
dispatcher told the officer that the driver "had a history of violence, possession of
weapons, and was reported to be a kick-boxer," even though it turned out the
information the dispatcher was relying on was six years old. "Our experience has led
us to the conclusion that, unfortunately, felons convicted of illegal weapons offenses
often later carry concealed weapons . . . . Moreover, while some persons who are 'very
violent' reform such tendencies, many, many others do not." (Bush (2001) 88
Cal.App.4th 1048, 1053.)
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4.
4.5
Searches Pursuant to Search Conditions
The California Supreme Court has now clarified the law on the scope of a vehicle search if
one of the vehicle occupants is a parolee. If an occupant of a vehicle is a parolee, you may
search the areas of the passenger compartment--including containers--where it is objectively
reasonable to expect that the parolee could have placed personal items or discarded
contraband. You are not required to limit your search to just the area where a parolee is
sitting. And you are not required to harbor a subjective belief that the person subject to the
search condition actually placed property or contraband in a particular location. What is
required is the parolee's access to areas in a vehicle. (Schmitz (2012) 55 Cal.4th 909.)
In Schmitz, the Court differentiated between a parolee's presence in a car versus a residence.
A driver has a reduced expectation of privacy in a vehicle, and that expectation is further
diminished by allowing passengers to ride in a car and, thus, "ceding some measure of
privacy." This is true even if the driver is unaware of a passenger's search condition. And,
like the vehicle itself, property transported inside a car is subject to a reduced expectation of
privacy. Balanced against this is a parolee's "heightened incentive to conceal or quickly
dispose of incriminating evidence." (Schmitz (2012) 55 Cal.4th 909, 924-925, 930.)
The Court also made clear the distinction between searches pursuant to a search condition and
Gant vehicle searches incident to arrest. An officer's "compelling interest" in monitoring
parolees and detecting possible criminal activity continues even after the parolee has been
removed from the car and secured. (Schmitz (2012) 55 Cal.4th 909, 928.)
Example:
Officer searched the passenger compartment of defendant's car after learning that the
front passenger was on parole. He found syringes in a chips bag and
methamphetamine in a pair of shoes in the backseat area. HELD: The front
passenger's parole status justified the search. Considering the layout of a standard
five-passenger car, it was objectively reasonable for the officer to expect that the
parolee could reach back and conceal items inside the chips bag and unclaimed shoes.
(Schmitz (2012) 55 Cal.4th 909.)
Although not addressed in the opinion, Schmitz should apply equally to the search of PRCS
offenders, who are subject to the identical search condition as California parolees. (See Pen.
Code, § 3465.)
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4.6
III.
SEARCH AND SEIZURE - VEHICLES
SEARCHES INCIDENT TO ARREST
A search incident to the lawful arrest of either the driver or any other occupant of a vehicle
requires a "custodial arrest." An "arrest" occurs when you take someone into custody, either
by the use of physical restraints or by the arrestee's submission to your authority. (Hodari D.
(1991) 499 U.S. 621, 626; Turner (1994) 8 Cal.4th 137, 180.)
Citations for "cite and release" traffic offenses are not "custodial arrests." Even though the
Vehicle Code (as drafted before "detentions" were permitted) uses the word "arrestee" to
describe the person being cited, the driver is not normally taken into physical custody. (See
Ch.16-III for a discussion of traffic cite-and-release procedures.) For this reason, issuing a
citation will not justify searching the vehicle under the "incident-to-(a custodial)-arrest"
exception to the warrant requirement, even where the officer has the power to make such an
arrest. (Knowles (1998) 525 U.S. 113, 114-115; Arturo D. (2002) 27 Cal.4th 60, 75, fn. 15.)
This is because officers issuing citations do not face the same dangers associated with taking
an arrestee into physical custody. (Moore (2008) 553 U.S. 164, 177-178.)
A.
Incident to Arrest--Persons
The rule for searching persons incident to a custodial arrest does not change just because the
person is (or has just been) in a vehicle. Briefly stated, you are allowed to conduct a search,
including a search of any containers, incident to any kind of lawful custodial arrest, from
murder to outstanding traffic warrants. (Robinson (1973) 414 U.S. 218; Gustafson (1973)
414 U.S. 260.)
Additionally, an unlawful traffic stop does not necessarily invalidate a search if the search is
based on independent lawful grounds and the traffic stop was not the result of purposeful or
flagrant misconduct. For example, an officer's discovery of an outstanding arrest warrant
prior to a search of the passenger was an "intervening circumstance" that resulted in a lawful
search incident to arrest on the warrant. (Brendlin (2008) 45 Cal.4th 262, 265.)
B.
Incident to Arrest--Vehicles
For 28 years, the law on vehicle searches incident to arrest was remarkably clear. Officers
were permitted to search a vehicle passenger compartment following the custodial arrest of a
recent occupant even when the arrestee was handcuffed and removed to another location.
(Belton (1981) 453 U.S. 454.)
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4.6a
The United States Supreme Court's decision in Arizona v. Gant (2009) 556 U.S. 332 replaced
the Belton bright-line rule with a new two-part test for the lawful search of a vehicle incident
to arrest of an occupant. Vehicle searches incident to arrest of a vehicle's occupant are now
lawful if:
(1) an arrestee could gain access to the passenger compartment of the vehicle, or
(2) it would be "reasonable to believe" that evidence relevant to the arrest offense
could be found in the vehicle.
To understand what lawful searches may still be conducted following Gant, it is important to
understand why the majority of the Court withdrew its approval of Belton searches. The
Belton exception for warrantless searches was based on Chimel, which allows a search
incident to arrest of those areas within an arrestee's "immediate control" so that the arrestee
cannot access a weapon or destroy evidence. (Chimel (1969) 395 U.S. 752.) The Court
reasoned that if an arrestee "has been secured and cannot access the interior of the vehicle"
then the justification for the warrantless search was gone. (Gant (2009) 556 U.S. 332, 335,
343.)
The decision in Gant is, it appears, a response to the use of Belton incident-to-arrest searches
beyond what the Court recognized as reasonable boundaries. In other states, for instance,
officers would use Belton to justify searches incident to arrests for traffic violations,
searching "every purse, briefcase, or other container" in the passenger compartment. The new
restrictions on Belton are a response to this perceived abuse: "A rule that gives police the
power to conduct such a search whenever an individual is caught committing a traffic offense,
when there is no basis for believing evidence of the offense might be found in the vehicle,
creates a serious and recurring threat to the privacy of countless individuals. Indeed, the
character of that threat implicates the central concern underlying the Fourth Amendment--the
concern about giving police officers unbridled discretion to rummage at will among a person's
private effects." (Gant (2009) 556 U.S. 332, 345.)
It is important to note that the Court did not overrule Belton. The majority opinion took
great pains to explain that the facts in Belton--one officer, four occupants, one pair of
handcuffs--would still permit a warrantless search incident to arrest because the interior of the
vehicle was, at least theoretically, accessible to some of the occupants after they were
arrested. (Gant (2009) 556 U.S. 332, 339.)
Additionally, nothing in Gant diminished the permissible scope of an incident-to-arrest
vehicle search. When the arrestee's access to the interior of the vehicle justifies the search,
the scope of the search would still encompass "any containers found within the passenger
compartment," including "closed or open glove compartments, consoles, or other receptacles
located anywhere within the passenger compartment, as well as luggage, boxes, bags,
clothing and the like." (Belton (1981) 453 U.S. 454, 460-461, fn. 4; see Gant (2009) 556 U.S.
332, 345.) The search is limited to the "passenger compartment" and may not include the
vehicle's trunk. (Stoffle (1991) 1 Cal.App.4th 1671, 1680.) It would include containers in the
passenger compartment "possessed by nonarrested occupants." (Mitchell (1995) 36
Cal.App.4th 672, 677; Prance (1991) 226 Cal.App.3d 1525.)
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4.6b
SEARCH AND SEIZURE - VEHICLES
Interestingly, while restricting Belton searches for considerations of safety and the
preservation of evidence, the Gant decision also created a new lawful basis for vehicle
searches incident to arrest. Officers now may search a vehicle when it is "reasonable to
believe" evidence relevant to the arrest offense could be found in the vehicle. (Gant (2009)
556 U.S. 332, 335, 351.) This requires a "reasonable possibility, not probability." (Nottoli
(2011) 199 Cal.App.4th 531, 553; see also Megginson (2009) 556 U.S. 1230 [ruling on denial
of certiorari by Justice Alito, dissenting and referencing "the reasonable suspicion
requirement in Gant"]; Evans (2011) 200 CalApp.4th 735, 751--"[r]easonable suspicion, not
probable cause, is required"; Osborne (2009) 175 Cal.App.4th 1052, 1065--the Gant
"reasonable basis to believe" is "a standard less than full probable cause.") All that is
required is reasonable suspicion that evidence relating to the "crime of arrest" "might" be
found in the vehicle.
For example, officers could have searched the car in Belton because the occupants were
arrested for the possession of marijuana and evidence relating to the "crime of arrest" might
have been found in the car. (Gant (2009) 556 U.S. 332, 344--same as to the car in Thornton
(2004) 541 U.S. 615 based on an arrest for possession of narcotics.) When a driver is arrested
for driving under the influence, it is generally reasonable for an officer to believe that
evidence related to that crime could be found in the vehicle. (Quick (2016) 5 Cal.App.5th
1006.)
In other cases, such as a simple traffic violation, officers will not have a reasonable basis to
believe that the vehicle contains evidence relevant to the arrest offense. (Gant (2009) 556
U.S. 332, 343-344, citing as examples Atwater (2001) 532 U.S. 318, 324--seatbelt violation;
Knowles (1998) 525 U.S. 113, 118--speeding.) It is the nature of the offense arrest
"considered in conjunction with the particular facts of the case" that determine whether a
Gant vehicle search is lawful. (Evans (2011) 200 CalApp.4th 735, 751-752.)
Example:
Nottoli was arrested for driving with an expired license and being under the influence.
HELD: The search of the car was lawful because Nottoli's arrest for a violation of
Health and Safety Code section 11550 provided a reasonable basis to believe that
evidence relevant to that offense might be found in the car. (Nottoli (2011) 199
Cal.App.4th 531.)
Example:
Driver admitted using Percocet and marijuana earlier in the day and was found to be
driving under the influence. Search of the car under Gant was lawful because it was
"'certainly logical and reasonable to expect that items related to alcohol or drug
consumption, such as alcoholic beverage bottles or drug paraphernalia, might readily
be contained in the intoxicated driver's car.'" (Quick (2016) 5 Cal.App.5th 1006.)
Example:
A lawful patsearch led to the discovery of a loaded firearm in the possession of a
felon. Officers could search arrestee's vehicle incident to arrest under Gant because it
was reasonable to believe that "additional items related to the crime of gun possession
such as more ammunition or a holster" might be found in the car. (Osborne (2009)
175 Cal.App.4th 1052, 1065.)
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Example:
1.
4.6c
Observing Evans' erratic driving and failure to signal a turn, officers initiated a traffic
stop. Evans appeared unusually nervous: his hands were shaking, and his voice
cracked. He would not open his window more than one-half inch to talk to the
officers, and he would not comply with the request to step out of the car after being
asked at least 10 times to do so. Evans repeatedly asked to speak to a police
supervisor and then rolled up the window. Another officer had to break a side
window and remove him. Evans was arrested for a violation of Penal Code section
148, and the car was searched. Empty baggies and $65 in cash were found in the
center console at the scene, and rock cocaine was discovered hidden in the air vent
after the vehicle was impounded. HELD: The searches were unlawful under Gant,
and they were not justified on the record provided under the Ross automobile
exception or as an inventory search. (Evans (2011) 200 Cap.App.4th 735.) (Note that
the searches could have been saved under the inevitable discovery doctrine if the
record on inventory policies and practices had been developed.)
Searches Before April 21, 2009
The Supreme Court has unequivocally ruled that evidence obtained from vehicle searches
conducted before April 21, 2009, under Belton and pursuant to a lawful arrest is not subject to
suppression. The officers conducting those searches were complying with binding precedent,
which is what reasonable officers "would and should" do. Following well-established
precedent is not culpable conduct, and excluding evidence after there is a change in law
would only deter what was conscientious police work. (Davis (2011) 131 S.Ct. 2419, 24282429; see Herring (2009) 555 U.S. 135.) Davis thus invalidates the decisions from lower
courts, including the Ninth Circuit, which refused to apply Herring to pre-Gant Belton
searches. (See Gonzales (9th Cir. 2010) 598 F.3d 1095.)
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2.
4.7
Searches After April 21, 2009
The Gant decision does not foreclose vehicle searches following an arrest. What is now
required is the ability to articulate grounds for a vehicle search. If any of the following
grounds justify a search, it will be lawful. All of the grounds are based on an objective test-not on an individual officer's state of mind.
The Gant decision identifies four alternative justifications for lawful vehicle searches:
•
The "Reason to Believe" Test. Officers may still conduct a search incident to arrest
when it is "reasonable to believe" that evidence related to the "'crime of arrest might
be found in the vehicle.'" (Gant (2009) 556 U.S. 332, 343.)
•
The "Automobile Exception." Any part of a vehicle (including the trunk and closed
containers) may be searched if there is probable cause to believe that the vehicle
contains evidence of criminal activity and the evidence may be located in the area
searched. (Ross (1982) 456 U.S. 798.) (See Ch. 4-IV, below.)
•
Vehicle "Patdowns." During a detention, it is lawful to conduct a limited search of
the passenger compartment for weapons when the officer has reasonable suspicion
that the detainee or another person on the scene is dangerous and may gain immediate
access to a weapon. (Long (1983) 463 U.S. 1032.) (See Ch. 4-II-E-3, above.)
•
"Safety or Evidentiary Interests." Citing Buie (1990) 494 U.S. 325 (protective
sweeps), the Gant Court said that "there may be still other circumstances in which
safety or evidentiary interests would justify a search." (Gant (2009) 556 U.S. 332,
347.) This provides a catchall for those circumstances not yet decided by case law.
Added to these justifications are additional bases for conducting a lawful search in California.
•
Consent. As discussed below, consent is always a valid basis for searching a vehicle.
Remember, consent that is the product of an illegal detention or arrest will be subject
to challenge.
•
Vehicle Impound/Inventories. Vehicles properly impounded pursuant to a
departmental "standardized" policy may be inventoried. (Bertine (1987) 479 U.S.
367; Wells (1990) 495 U.S. 1.) The policy need not be in writing (Needham (2000)
79 Cal.App.4th 260), but officers may be asked at a suppression hearing to testify as
to the policy directives. (See Ch.4-IX, below; see also (Ruckes (9th Cir. 2009) 586
F.3d 713--"inevitable discovery" doctrine applied because the facts at the suppression
hearing established that the vehicle would have been subject to a vehicle
impound/inventory search.)
•
Parole, PRCS and Probation Searches. If an officer knows that a person connected
to the vehicle is on parole, PRCS, or on searchable probation, the vehicle may be
searched pursuant to the parolee's or probationer's search condition. (See Ch. 5-VII.)
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4.8
•
Search for License/Registration Documents. If a driver stopped for a traffic
violation denies having a driver's license or vehicle registration, officers may, prior to
issuing a citation, enter the vehicle and conduct a limited search of the areas where
such documentation "reasonably may be expected to be found." (Arturo D. (2002) 27
Cal.4th 60.) (See sec. II-E-2, above.)
If you have more than one of these justifications, use them all. All that is required is that the
warrantless vehicle search was reasonable under the Fourth Amendment on any ground
recognized by the courts.
C.
The "Contemporaneous" Requirement
Although Gant may have significantly restructured the bases for a lawful search incident to
arrest, it did not alter the rule requiring a "fairly contemporaneous" search. A search will be
valid as incident to an arrest only if the search and arrest were "contemporaneous." (Stoffle
(1991) 1 Cal.App.4th 1671, 1679.) This means they must occur at the same location and at
approximately the same time, although either may precede the other slightly. (LaFromboise
(9th Cir. 1997) 105 F.3d 512, 513; Smith (9th Cir. 2004) 389 F.3d 944, 952.) (See Ch. 2-VIB.)
D.
Recent Occupants
Belton, and now Gant, applies to "recent occupants" of a vehicle under the appropriate
circumstances. (See Thornton (2004) 541 U.S. 615, 620-621.)
Example:
Thornton tried to avoid driving next to a uniformed officer in an unmarked car. The
officer pulled onto a side street and ran a check on the registration tags of Thornton's
car, which came back as issued to a different vehicle. Before the officer caught up
with him, Thornton had parked and was walking away from his car. Thornton was
arrested outside and away from his vehicle. HELD: The Belton search of the car was
valid. "So long as an arrestee is the sort of 'recent occupant' of a vehicle such as
petitioner was here, officers may search his vehicle incident to the arrest." (Thornton
(2004) 541 U.S. 615.)
Example:
Search of car incident to arrest was proper where officer had observed arrestee
standing near the rear of a parked vehicle drinking a can of beer, then standing by the
open passenger window and leaning inside, and a can of beer was later observed on
the floorboard of the car. (Stoffle (1991) 1 Cal.App.4th 1671, 1680.)
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IV.
SEARCHES BASED ON PROBABLE CAUSE – THE "AUTOMOBILE EXCEPTION"
A.
Parts of the Vehicle
4.8a
You may conduct a warrantless search of any part of a vehicle that is being used on a public
thoroughfare, or is readily capable of such use, as long as you have probable cause to believe
the object you are looking for may be located in that portion of the vehicle. For example, you
may search the passenger compartment, the glove compartment, under the hood, in a locked
trunk compartment, or in any of the vehicle's contents, as long as what you are looking for
might reasonably be located there. (Houghton (1999) 526 U.S. 295; Ross (1982) 456
U.S. 798, 820-821; Acevedo (1991) 500 U.S. 565, 569-570, 580; Panah (2005) 35 Cal.4th
395, 469; Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 100-101.) You do not need
any additional dangerous circumstances or exigencies beyond the mobility that is inherent in
any vehicle that can be operated. (Labron (1996) 518 U.S. 938, 940; Carney (1985) 471 U.S.
386, 390-391.)
It is important to have in mind the following applications of the "automobile exception":
•
Apart from the "automobile exception," the general "exigent circumstances" exception
can also justify a warrantless vehicle search without probable cause. (Panah (2005) 35
Cal.4th 395, 469; see discussion in Ch. 3-IV-A-2.)
•
The "automobile exception" applies not only to any vehicle that is readily mobile, but also
to any vehicle that reasonably appears mobile, even if in fact it is not. (Hatley (9th Cir.
1993) 999 F.2d 392, 395.)
•
As discussed below, the "automobile exception" applies to other vehicles, including motor
homes, vans, bicycles, motorcycles, and houseboats.
•
This "vehicle" or "probable cause" justification for a warrantless vehicle search is entirely
separate and different from the "incident to (custodial) arrest" justification, even though,
in some situations, they may both exist at the same time. (Overland (1988) 203
Cal.App.3d 1114.)
•
The "automobile exception" will not allow you to enter premises requiring a warrant-garage or even a large camping "tent" covering a car--to search the vehicle parked there.
(Hughston (2008) 168 Cal.App.4th 1062, 1071.)
The "automobile exception" is based on "probable cause." "Probable cause" to search a
vehicle means exactly the same thing that it does in a search warrant context, namely, enough
facts, knowledge, training, etc., to provide a "fair probability" that the object you are looking
for will be found in the place (portion of the car) you want to search. (See Ch. 6, "Search
Warrants"; Harris (2013) 133 S.Ct. 1050, 1055; Allen (2000) 78 Cal.App.4th 445, 450;
Nonnette (1990) 221 Cal.App.3d 659, 665-666; Pinela-Hernandez (9th Cir. 2001) 262 F.3d
974, 978.)
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In other words, if you are wondering whether you can search a certain portion of the vehicle
without a warrant, just ask yourself whether you would have enough information to get a
warrant if you went before a magistrate. (Dyson (1999) 527 U.S. 465, 466.)
The courts have created an exception to the warrant requirement when it comes to vehicles
because of the lower expectation of privacy that people have in them, owing to their mobility
and to the fact they are subject to substantial governmental regulation. (Labron (1996) 518
U.S. 936; Carney (1985) 471 U.S. 386; Ruggles (1985) 39 Cal.3d 1; Arturo D. (2002) 27
Cal.4th 60, 68; Pinela-Hernandez (9th Cir. 2001) 262 F.3d 974, 978.) This is inherent in
mobile vehicles, and no separate or additional "exigency" is required. (Dyson (1999) 527
U.S. 465, 466-467.)
Example:
An officer checked out a "suspicious vehicle" call one afternoon and discovered four
males ducking up and down in a car parked in a high narcotics area of Sacramento.
The car was registered in Los Angeles; only one of the occupants had any
identification; they were miles from their supposed destination; and in the map pocket
behind the passenger seat the officer could see a man's clutch purse that contained a
white prescription bottle and a "bundle" of empty tiny white plastic baggies. These
circumstances provided probable cause to search the entire car and all containers in
the car that might contain drugs. (Nonnette (1990) 221 Cal.App.3d 659.)
Example:
Officer opened the rear door of a van to conduct a vehicle inventory and discovered a
loaded shotgun. He then had probable cause to search the remainder of the vehicle.
(Benites (1992) 9 Cal.App.4th 309, 328.)
Example:
In the course of a narcotics investigation, officers climbed a wrought iron fence
surrounding a large apartment complex, walked to the open carport where the Buick
they had been following was parked, and observed in the open trunk kilo-shaped,
brown wrapped packages. The suspects slammed the trunk closed. There was
probable cause to arrest and conduct a warrantless search of the trunk. (Arango
(1993) 12 Cal.App.4th 450, 455.)
Example:
Defendant's red Ford F-150 pickup with chrome rims exactly matched a dispatch and
was just three miles away from a realtor's open house where a burglary had occurred.
It was occupied by an African American man and woman, who were wearing clothing
described in the dispatch and who admitted to having been at the open house. There
was probable cause to search the truck for the wallet stolen from the realtor's purse.
(Little (2012) 206 Cal.App.4th 1364, 1373.)
Example:
Information from informants, plus corroboration and suspicious circumstances
(actions, possession of a concealed weapon, and false exculpatory statements),
provided probable cause to search defendant's vehicle. (Carrillo (1995) 37
Cal.App.4th 1662.)
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4.9
Example:
Erratic driving, slurred speech, pinpointed pupils, and fresh puncture mark on arm
would provide probable cause to search passenger compartment for narcotics. (Low
(1983) 148 Cal.App.3d 89.)
Example:
Based in part on their expertise and prior drug-related observations, officers
approaching a stopped vehicle had probable cause to believe that the white substance
in a zip-lock baggie that was tossed to the floorboards contained contraband.
Accordingly, it was legal for them to search the passenger compartment. (Banks
(1990) 217 Cal.App.3d 1358.)
Example:
Discovery of rock cocaine in the passenger compartment provided probable cause to
search the trunk. (Hunt (1990) 225 Cal.App.3d 498, 509; Varela (1985) 172
Cal.App.3d 757 [probable cause to search the trunk because defendant was under the
influence of a controlled substance and bindles of cocaine and heroin were found on
his person].)
Example:
Officers who arrested a suspect inside his car on suspicion of armed robbery an hour
earlier had probable cause to search the entire car, including the trunk, for fruits and
instrumentalities of the crime. (Varela (1985) 172 Cal.App.3d 757.)
Example:
Observing an open partial bottle of beer on the driver's seat of a car stopped for
improper registration provided probable cause to search the passenger compartment
for more open containers of alcohol. (Carter (1985) 163 Cal.App.3d 1183.)
Example:
During a traffic stop for speeding, an officer noticed the "smell of fresh beer" inside
the vehicle. He also noticed that the driver's eyes were red and glassy and that his
breath smelled of alcohol, although he adequately performed a series of FST's.
HELD: The officer had probable cause to search the passenger compartment and
containers located there for open containers of alcohol. (Molina (1994) 25
Cal.App.4th 1038, 1042.)
Example:
Insufficient probable cause to search car trunk existed where (1) two men were
standing by car in high prostitution area, one examining a plastic bag, the other
looking around; (2) defendant slammed trunk closed, walked away as officer
approached, then refused to stop; and (3) defendant would not identify self and no
longer had plastic bag in hand. Because the officer did not see or identify the contents
of the bag, it was "innocent" and not sufficiently tied into suspected criminal activity.
(Huntsman (1984) 152 Cal.App.3d 1073.)
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SEARCH AND SEIZURE - VEHICLES
Note that where a state statute has made a vehicle subject to forfeiture because of its use in
narcotics trafficking (see, e.g., Welf. & Inst. Code, § 11469 et seq.), you may seize the vehicle
from a public place without a warrant because you have probable cause that the vehicle itself
is contraband under the statute. (White (1999) 526 U.S. 559.)
Also, the discovery of contraband in a vehicle will justify a search under the automobile
exception even if the contraband could be lawfully possessed, such as with "medical
marijuana." Marijuana is contraband. (Waxler (2014) 224 Cal.App.4th 712, 715-716, 721.)
Example:
A Del Norte Sheriff's deputy was investigating illegal dumping in a parking lot when
he approached appellant's truck. When he got close to the truck, he smelled the odor
or burnt marijuana and saw a pipe with burnt marijuana in the bowl on the seat next to
appellant. Appellant presented a "215 card" after the deputy started searching the
truck. HELD: The search was lawful. Nonmedical marijuana is "contraband"
justifying a probable cause search of a vehicle. Possession of a "215 card" does not
vitiate probable cause to search under the automobile exception. (Waxler (2014) 224
Cal.App.4th 712.)
Example:
During a lawful search of a vehicle's passenger compartment, an officer found "a
marijuana bud" in the driver's "day planner." HELD: Discovery of even small,
"personal use" amount(s) of marijuana in the passenger compartment provides
probable cause to search the trunk. (Dey (2000) 84 Cal.App.4th 1318, 1320-1322;
Hunter (2005) 133 Cal.App.4th 371 [discovery of two baggies of marijuana in
passenger compartment provided probable cause to search the trunk].)
B.
Closed Containers
The "probable cause" or "automobile exception" also applies to closed, personal containers
inside, or attached to, a vehicle.
In other words, if you have probable cause to believe that "X" is located somewhere inside the
vehicle, then you are entitled to look inside any portion of the vehicle (trunk, glove
compartment, hood, etc.) and inside any closed container that might reasonably contain "X".
(Houghton (1999) 526 U.S. 295; Ross (1982) 456 U.S. 798; Acevedo (1991) 500 U.S. 565;
Thompson (2010) 49 Cal.4th 79, 112; Nonnette (1990) 221 Cal.App.3d 659; Molina (1994)
25 Cal.App.4th 1038, 1042.)
This is true even if the container or other object belongs to an unsuspected passenger. In
other words, you do not need to have independent probable cause relating to that particular
container or object nor any basis for believing that the passenger was involved in wrongdoing,
that the driver and passenger were cooperating, or that the driver had an opportunity to
conceal the item in the passenger's belongings. (Houghton (1999) 526 U.S. 295, 305.)
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4.10a
Rather, the only limitations are (1) that you have probable cause to search that area of the
vehicle, generally, and (2) that the container or object you plan to search is capable of
concealing the object of the search. (Houghton (1999) 526 U.S. 395; Ross (1982) 456 U.S
798; Acevedo (1991) 500 U.S. 565; Nicholson (1989) 207 Cal.App.3d 707; Arias (9th Cir.
1991) 923 F.2d 1387; Rodrigues-Fernandez (1991) 235 Cal.App.3d 543, 547; Schunk (1991)
235 Cal.App.3d 1334.) (For a discussion of what "probable cause" means, see headings
under Chapter 2 and Chapter 6; and remember that your expertise and experience play a
significant role in determining what constitutes probable cause (Rodrigues-Fernandez (1991)
235 Cal.App.3d 543, 547).)
Example:
Finding a syringe, admittedly used for taking drugs, on the driver's person provided
probable cause to search the vehicle. Therefore, it was proper for the officer to search
a purse that a female passenger had left on the back seat. (Houghton (1999) 526 U.S.
295.)
Example:
Officers were inside an apartment trying to locate a woman who had reported a
domestic violence incident with her live-in boyfriend the previous night. They located
the victim's fanny pack, driver's license, cell phone and keys on the kitchen table,
observed used Sawzall blades in the living room, smelled a "chlorine" odor consistent
with bleach, found a spotless bathroom in an otherwise messy residence, and noticed
an open window on a cold and windy night. Added to this were defendant's evasive
and contradictory statements and the absence of their two-year-old son. The facts
amounted to probable cause to search defendant's borrowed car for evidence relating
to the victim disappearance, including the plastic Tupperware containers in which her
dismembered body was found. (Hochstraser (2009) 178 Cal.App.4th 883, 902-903.)
Example:
An eyewitness and possible accomplice to a robbery-murder told police that
Thompson had killed the victim and then obtained his personal property from the
victim's car and storage locker. Based on information from someone living at
Thompson's registered parole address, officers seized two duffel bags that had been
stored in the trunk of Thompson's mother's car. HELD: The officers had sufficient
probable cause to seize and search the bags found in the trunk. (Thompson (2010) 49
Cal.4th 79, 111-112.)
Some containers will provide their own probable cause by revealing their contents through
sight, smell, or touch; and you may also consider the container's shape, design, and the
manner in which it is being carried. (Chapman (1990) 224 Cal.App.3d 253, 257.)
However, be very careful if the container is simply an "everyday" object, such as a matchbox,
pill bottle, film canister, briefcase, paper bag, plastic bag, etc. Courts will examine all the
factors very closely to determine whether you in fact had probable cause to believe the
container held the object you were looking for. (Limon (1993) 17 Cal.App.4th 524, 538.)
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Example:
Officer who found an open container of beer in a vehicle had probable cause to search
for more alcohol but could not legally open a woman's compact or "snuff case" that he
found on the floorboards--despite his experience that such containers were sometimes
used to carry narcotics. There were no other indications of drugs being used or carried
in the vehicle, and the container was simply a common product with a legitimate use,
such as a pill bottle, pack of cigarettes or plastic bag. (Chapman (1990) 224
Cal.App.3d 253.)
Example:
During a traffic stop, a "neatly folded square piece of paper" fell from the driver's
wallet to the ground. The experienced officer recognized it as a probable bindle of
cocaine or heroin. Therefore it was proper to seize the bindle. (Lilienthal (1978) 22
Cal.3d 891.)
Example:
Officer, who had probable cause to be looking in the passenger compartment for
additional alcoholic beverages only, was not entitled to open a grocery bag that he first
lifted off the seat and could tell by its very light weight that it did not contain any
bottles or cans of beer or other beverage. (Carter (1985) 163 Cal.App.3d 1183.)
Example:
Defendant claimed that officer who seized counterfeit currency stuffed into the
weatherstripping next to the front passenger door conducted a second search in
unfolding the bills to examine their serial numbers. Rejecting his claim, the court
found that the probable cause to search the car for evidence of drug trafficking
permitted the seizure and inspection of cash possibly related to drug sales. (Ewing
(9th Cir. 2011) 638 F.3d 1226.)
Example:
Officer discovered a loaded shotgun in the trunk of a stopped vehicle, and the driver
told him there was also a handgun under the front seat, for which the driver had no
permit. Behind the driver's seat, the officer found a briefcase and, inside the briefcase,
a black purse. The court agreed that the officer "was entitled" to look inside these
closed personal containers and that he "acted properly" in doing so without a warrant.
(Nicholson (1989) 207 Cal.App.3d 707.)
Sometimes, you may have probable cause to believe that only a specific container in a vehicle
contains contraband, for example, when you observe a suspect, whom you have been
surveilling at a residence, personally put his suitcase full of dope into the trunk of a car. In
such a situation, it is legal for you to stop the car, seize the suitcase, and search (open) it,
without a warrant. (Acevedo (1991) 500 U.S. 565.)
Remember, however, that in such a situation, you might lack probable cause to search other
portions of the vehicle. You may only search those areas and/or containers where you have
probable cause to believe contraband or evidence is located. (Acevedo (1991) 500 U.S. 565;
Ross (1982) 456 U.S. 798.)
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4.10c
Example:
Surveilling police officers observed Acevedo leave an apartment, known to contain
marijuana, with a brown paper bag the size of marijuana packages they had seen
earlier. Acevedo placed the bag in the car's trunk and, as he drove away, the officers
stopped the car, opened the trunk and the bag, and found marijuana. HELD: The
warrantless search of the bag was legal, even though probable cause to search the
remainder of the car was lacking. (Acevedo (1991) 500 U.S. 565; see also RodriguesFernandez (1991) 235 Cal.App.3d 543, 548.)
Example:
Undercover agent, after making a cocaine buy at an apartment, was shown a bag
containing more cocaine in the trunk of an automobile. Later, when the suspect got in
the car and was arrested, it was legal to search the container, and the rest of the car,
without a warrant. (Sanchez (9th Cir. 1991) 944 F.2d 497.)
Example:
An auto repairman, who happened to be an ex-policeman, discovered a small
dufflebag containing marijuana stuffed inside the hood compartment of a car he was
working on, and called police HELD: It was proper for the responding officer to
seize and open the bag without a warrant, since there was probable cause to believe it
contained contraband. (Schunk (1991) 235 Cal.App.3d 1334.)
Example:
Narcotics officers surveilled a major purchase where the seller drove the buyer's car
from a supermarket parking lot back to a residence and loaded it with large plastic
garbage bags. The outlines of the rectangular kilo-size packages were visible to the
experienced, trained officers, and the suspects engaged in other behavior indicating
drug-trafficking (use of pagers, counter-surveillance, etc.). After the car was returned
to the parking lot and retrieved by the buyer, the officers stopped it and seized the
bags, opening one of them. HELD: Because the officers had ample probable cause to
believe the bags contained contraband, they could lawfully seize and search them
without a warrant. (Rodrigues-Fernandez (1991) 235 Cal.App.3d 543, 546.)
Closed containers brought onto a common carrier may not be searched, even externally,
absent probable cause. The United States Supreme Court has ruled that it constitutes an
illegal search to physically manipulate soft luggage that a bus passenger has carried on and
placed on the luggage rack above his seat. Although a certain amount of touching and
handling of such luggage must be expected, it is unreasonable to "feel the bag in an
exploratory manner" or to engage in a "probing tactile examination" of carry-on luggage, at
least for bus (and presumably train) passengers. (Bond (2000) 120 S.Ct. 1462.)
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SEARCH AND SEIZURE - VEHICLES
Motor Homes
The "automobile exception" applies to a motor home as well, at least when it (1) is being used
on the highways, or (2) is capable of such use and is found stationary in a place not regularly
used for residential purposes. (Carney (1985) 471 U.S. 386; Ruggles (1985) 39 Cal.3d 1;
Black (1985) 173 Cal.App.3d 506.)
This means that you do not need a warrant to search a motor home which you stop on the
highway, or which you find parked on the street or in a parking lot.
Note:
"Vans" also fall within the "automobile exception," since they are even more
like a passenger car than a motor home is. (Chestnut (1983) 151 Cal.App.3d
721.)
On the other hand, if the motor home is at a campground or other overnight facility, you
should probably obtain a warrant, particularly if the vehicle is hooked up to outside facilities
(especially plumbing) and particularly if it has been, or is going to be, there for a substantial
period.
Note:
D.
The federal Ninth Circuit Court of Appeals in California found a motor home
to be within the "vehicle exception" even though it was parked in a residential
driveway and hooked up by extension cord to the electricity in the house,
because it was so close to the public street and had been driven the night
before. (Hamilton (9th Cir. 1986) 792 F.2d 837.)
Houseboats
The Ninth Circuit has ruled, as has the Tenth Circuit, that a houseboat also qualifies for
warrantless searches under the probable cause, vehicle exception. Therefore, assuming that
you have probable cause, you may search a houseboat without a warrant, at least where the
boat is "in public waters, obviously mobile," i.e., either moving or ready to move with the
turn of the key. The court noted, however, that it might rule otherwise if the houseboat were
"permanently moored." (Albers (9th Cir. 1998) 136 F.3d 670, 672-673.)
E.
Bicycles
Bicycles also fall within the "automobile" or "probable cause" exception to the general
warrant requirement, since they too are readily mobile and subject to substantial
governmental regulation, thus reducing the rider's reasonable expectation of privacy. (Allen
(2000) 78 Cal.App.4th 445, 448-450.)
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F.
4.11
Contemporaneousness
Under the probable cause "automobile exception," it is not necessary that the warrantless
search of a vehicle take place on the roadside at the time of the stop. Instead, you can tow the
car away and search it at a later time, "even after it has been impounded and is in police
custody." (Thomas (1982) 458 U.S. 259, 261; Henderson (9th Cir. 2001) 241 F.3d 638, 649.)
If the "police have probable cause to justify a warrantless seizure of an automobile on a public
roadway, they may conduct either an immediate or a delayed search of the vehicle."
(Acevedo (1991) 500 U.S. 565, 570; Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85,
101; Noster (9th Cir. 2009) 590 F.3d 624, 634.)
The same is true as to containers that are discovered in the vehicle at the time of the search.
They may be confiscated and searched at a completely different time and location. Beware,
however, of waiting indefinitely. (Albers (9th Cir. 1998) 136 F.3d 670, 674.)
Example:
V.
Officers raided a drug delivery at a small airstrip and discovered a vehicle full of
suspicious packages. Although they could have searched them there at the time, it
was perfectly legal to confiscate them and open them without a warrant three days
later at a warehouse. (Johns (1985) 469 U.S. 478, 484.)
PLAIN VIEW
"Plain view" is not a "search." It is the observation of crime-related evidence from a place
you have a lawful right to be. (Horton (1990) 496 U.S. 128; Miranda (1993) 17 Cal.App.4th
917, 927.)
A.
Observation After Entry
If you are already lawfully within the vehicle, you may seize all crime-related evidence that
you see.
Example:
An officer has probable cause to believe the occupants of a vehicle just robbed a
convenience market. She enters the car to look for the gun, fruits of the crime, etc.,
and sees a plastic bag full of what appears to be cocaine. She may properly seize the
cocaine.
Example:
Officer, who had made a speeding stop and lawfully ordered everyone out, was
properly inside checking for registration where driver had no license, denied
ownership, and said the other occupants were hitchhikers. When he observed a wallet
on the front seat, it was proper to seize it and, after everyone denied owning it, to open
it to determine its owner. (Webster (1991) 54 Cal.3d 411, 431.)
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Example:
Unlicensed minor stopped for speeding failed to provide evidence of his identity,
proof of insurance, or vehicle registration. While looking for documentation under the
driver's seat, the officer lawfully seized a glass smoking pipe and a box containing a
vial with a white powder residue. (Arturo D. (2002) 27 Cal.4th 60.)
Example:
An officer stops the suspect on a traffic offense. He puts his head inside the window
and sees contraband. Assuming that the contraband was not visible from outside, it
would have to be suppressed as the product or "fruit" of the officer's illegal "entry."
B.
Observation Before Entry
If you observe illegal items in plain view, you may enter the vehicle to seize them.
Observations made from outside a vehicle, and from a position where you have a right to be,
is not a search. (Lomax (2010) 49 Cal.4th 530, 564.)
Example:
Officers ordered all occupants out of the car following a traffic stop. One officer then
returned and observed through the rear passenger window a Glock handgun in plain
view in the back seat pocket. Based on that observation, he lawfully searched the car
and found another handgun next to the driver's seat. (Lomax (2010) 49 Cal.4th 530.)
Example:
Officers made a traffic stop and observed, from outside the vehicle, items they
recognized as having been stolen in a recent robbery. This gave them probable cause
to enter the passenger compartment, seize the contraband, and search for additional
"fruits." (Chavers (1983) 33 Cal.3d 462.)
Example:
The suspect shot at several motorists, hitting one, then drove off. An hour and a half
later, at the residence of the suspect's father, the police--who had been in "hot
pursuit"--saw spent cartridge casings on the floorboards of the suspect's car, and the
suspect was not around. Entry of the vehicle was proper. (Johnson (1981) 30 Cal.3d
444.)
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Example:
4.13
An officer, who could see the handle and trigger of a gun protruding from between the
front seats of an illegally parked car, acted properly in getting a parking lot attendant
to unlock the vehicle so the officer could determine if the firearm was loaded.
(Zonver (1982) 132 Cal.App.3d Supp. 1, referencing former Pen. Code, § 12031,
subd. (e).)
Once probable cause exists to search a vehicle, no warrant is required, whether or not the
vehicle is stopped on a highway or found parked on a street. (Labron (1996) 518 U.S. 938;
Ross (1982) 456 U.S. 798; Overland (1988) 203 Cal.App.3d 1114.)
Example:
C.
Police conducting surveillance of a city employee saw him stash two bags, believed to
contain stolen parking meter coins, in his vehicle parked in a nearby parking lot. Two
hours later, after the police arrested the employee at work and took him into custody,
the warrantless search of his car was legal based on probable cause. (Overland (1988)
203 Cal.App.3d 1114.)
Random License Plate Checks/Name Checks
It is legal to run a random license plate check on a vehicle you see in a public place (or a
place you have a right to be), even if you have no reasonable suspicion of criminal activity.
This is because there is no expectation of privacy in a license plate on the exterior of a car
being driven in public. (Diaz-Castaneda (9th Cir. 2007) 494 F.3d 1146, 1151; see also Class
(1986) 475 U.S. 106, 114--no expectation of privacy in Vehicle Identification Number.)
Based on the logic of the cases cited above, it is no doubt likewise legal and proper for you to
run a check on the name of the vehicle's registered owner--or on anyone's name that you
obtain in a lawful manner--as long as you run the check for a legitimate law-enforcement
purpose, for example, to see if the individual has any outstanding wants or warrants. (See
Bouser (1994) 26 Cal.App.4th 1280, 1287; see also Brown (1998) 62 Cal.App.4th 493, 498.)
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D.
SEARCH AND SEIZURE - VEHICLES
Obviously Crime-Related Evidence
In order to seize evidence from a vehicle, you must immediately recognize the evidence as
crime related or have probable cause to believe that it is. (Bittaker (1989) 48 Cal.3d 1046.)
Example:
Officer, investigating an auto parts theft, scraped a small layer of new paint from the
suspect's vehicle to make a comparison. The scraping, done for the purpose of
obtaining a sample and to see what color was underneath, constituted both a "search"
and a "seizure." Although no warrant was necessary, probable cause (which existed in
this case) was required. (Robinson (1989) 209 Cal.App.3d 1047.)
In the context of the plain view doctrine, probable cause is a flexible, commonsense standard,
which requires only that the facts available to the officer would warrant a person of
reasonable caution in believing that the item may be contraband, stolen property, or other
evidence of a crime. No showing is required that such a belief is correct or more likely true
than false. "A 'practical, nontechnical' probability that incriminating evidence is involved is
all that is required." (Brown (1983) 460 U.S. 730, 742; Stokes (1990) 224 Cal.App.3d 715,
719.)
Example:
Following a traffic stop, officers ordered passengers out of the car and then observed
through the rear window a gun in the rear seat pocket. The officer lawfully seized the
gun and searched the car for additional weapons. (Lomax (2010) 49 Cal.4th 530,
564.)
Example:
An officer saw defendant standing in the street of a mobile-home park occupied
primarily by senior citizens. He knew defendant did not live in the park, that he had
been arrested for burglary previously, and that there had been several recent burglaries
committed in that neighborhood. Defendant was carrying a rectangular object
wrapped in an afghan, and he seemed nervous. When the officer walked up to the car
where defendant had placed the object, another occupant said to defendant, "I told you
not to do it." When the defendant got out of the car, he had a screwdriver in his back
pocket. The officer could see that the object on the seat was a VCR. HELD: There
was probable cause to seize the VCR as stolen property, even though the officer did
not know about a burglary in the area. (Stokes (1990) 224 Cal.App.3d 715.)
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Note:
E.
4.14a
The best way to handle such a situation is to (1) get consent to keep the
evidence for a while, and (2) ask the suspect about the evidence (get lies,
admissions, etc.). Sometimes additional circumstances will arise (nervousness,
attempt to conceal, evasive answers, etc.) which may make it reasonable to
seize the item.
Use of a Flashlight
The use of a flashlight, either from outside the car or after a lawful entry (or anywhere else),
changes nothing. You may use a flashlight to see anything that would have been visible
during daylight hours. (Rogers (1978) 21 Cal.3d 542, 549.)
VI.
PLAIN SMELL
Just like "plain view," "plain smell" is also not a "search," and it too can provide probable
cause for searching parts of cars and containers within cars. (Chavers (1983) 33 Cal.3d 462;
Molina (1994) 25 Cal.App.4th 1038, 1042; Weaver (1983) 143 Cal.App.3d 926.)
Example:
Officer made traffic stop for speeding, then saw marijuana on rear seat. While
retrieving that, he smelled a further strong odor of unburned marijuana coming from
rear portion of vehicle. That gave him probable cause to search the passenger
compartment and the trunk. (Podesto (1976) 62 Cal.App.3d 708; Waxler (2014) 224
Cal.App.4th 712, 721 [smell of burnt marijuana and observation of marijuana pipe
next to driver provided probable cause to search truck]; Ingle (1982) 129 Cal.App.3d
188; Guidi (1973) 10 Cal.3d 1.)
Example:
If you use a dog to sniff for drugs from outside a car, there is no search (Caballes
(2005) 543 U.S. 405); and if you are searching inside the vehicle by consent, using a
dog does not exceed the permissible scope of the search (Perez (9th Cir. 1994) 37 F.3d
510, 516; see also Place (1983) 462 U.S. 696, 707).
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VII.
SEARCH AND SEIZURE - VEHICLES
CONSENT
"Consent" is a very useful legal doctrine. If you obtain a valid consent to search a vehicle
and/or something inside it, the search should always be upheld as legal.
However, remember that the person giving the consent has the power, at any time, to limit it
or to withdraw it altogether. (Jimeno (1991) 500 U.S. 248; see also Nelson (1985) 166
Cal.App.3d 1209, where the consent to search the trunk was not deemed withdrawn even
though the driver said he did not have a key to it.)
In addition, there are at least four areas of consideration within the doctrine of "consent" that
you should be very aware of: (1) your right to ask, (2) voluntariness, (3) authority, and (4)
scope.
You may lawfully seek a voluntary consent to search during a "consensual encounter" or
during a lawful "detention." Merely asking a question--i.e., seeking voluntary consent to
search--is neither a "search" nor a "seizure." (Bell (1996) 43 Cal.App.4th 754, 768; Gallardo
(2005) 130 Cal.App.4th 234, 238-239.) "'[W]e reject any notion that a police officer's
questioning, even on a subject unrelated to the purpose of the stop, is itself a Fourth
Amendment violation." (Bell (1996) 43 Cal.App.4th 754, 768.) "While the traffic detainee is
under no obligation to answer unrelated questions, the Constitution does not prohibit law
enforcement officers from asking." (Brown (1998) 62 Cal.App.4th 493, 499.)
A request for consent does not require reasonable suspicion. However, both the request for
consent and the consensual search must occur during that amount of time necessary to address
the traffic violation. (Gallardo (2005) 130 Cal.App.4th 234, 239.)
Example:
It was proper for uniformed officers to board a bus, question the passengers, and seek
voluntary consent to search their luggage for drugs, all without any objective
suspicion of criminal activity. (Bostick (1991) 501 U.S. 429; Drayton (2002) 536
U.S. 194.)
Example:
After stopping a bicyclist at night for having no lights, it was proper for the officer to
run a warrants check and, while waiting for the results, to ask the detainee about his
probationary status and to seek consent to search his fanny pack for weapons or drugs.
(Brown (1998) 62 Cal.App.4th 493, 496-500.)
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Example:
4.14c
After stopping a car for speeding, it was proper for the officer to ask both the driver
and the passenger some questions about where they were coming from and what they
had been doing, and then to ask each of them for consent to search, since this
questioning did not add to the delay otherwise resulting from the traffic stop. (Bell
(1996) 43 Cal.App.4th 754, 767.)
The next question is whether the consent you obtained during a lawful detention was
voluntary. Consent to search that is the product of an illegal arrest or detention is never
voluntary. (Valenzuela (1994) 28 Cal.App.4th 817, 833.)
During a lawful detention, voluntariness is based on the "totality of the circumstances." It
will be easier to prove in court that consent was voluntary if you have obtained a written,
signed consent-to-search form, but signed consent is never legally required.
If you wait and seek consent to search only after the traffic stop has been concluded--that is,
immediately after issuing a citation and returning the license to the driver--there is a potential
problem concerning voluntariness. Namely, if you do not obtain written consent or otherwise
inform the driver that he is free to leave or not cooperate, some courts may find, based on all
the circumstances, that the detention was unlawfully prolonged or extended, i.e., that a
reasonable person in the driver's place would not have believed he was free to leave--despite
having already been issued a warning or citation--and that this unlawfully prolonged
detention "tainted" (i.e., rendered involuntary) any consent that followed. (See ChavezValenzuela (9th Cir. 2001) 268 F.3d 719, 724-728, and a further comment in the same case
(upon denial of en banc review in 2002) 281 F.3d 897, as well as the dissent in Robinette
(1996) 519 U.S. 33, 45-51.) At the same time, however, Robinette did make it clear that
nothing in the U.S. Constitution requires you to advise a driver that he is free to leave or not
cooperate.
In other words, you can minimize possible problems with the "voluntariness" of a driver's
consent either (1) by obtaining it at some point during a lawful traffic stop or, (2) if you wait
until after you have issued the citation or warning, by getting the driver to sign a written
consent form and/or verbally advising the driver that he is free to leave or not give consent.
Example:
Consent obtained after completion of a traffic ticket was found voluntary where the
driver signed a written form that explained, as did the officer verbally, that the driver
had the right to refuse consent. (Galindo (1991) 229 Cal.App.3d 1529, 1535-1536.)
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Another possible problem relating to the "voluntariness" of consent to search a vehicle
concerns the use of a "ruse" or misrepresentation to obtain it. The only California case to
address this issue in the context of a vehicle search, however, found no problem.
Example:
A uniformed officer who had validly detained a suspected methamphetamine dealer
falsely told him that he had been stopped as part of a burglary investigation, then
asked for permission to search the pickup truck for stolen property and "other
contraband." HELD: The consent was valid under all the circumstances since it was
only a "partial misrepresentation" and "did not disguise either the fact the police
wanted to search the truck or the scope of the proposed search. Whether the police
were looking for stolen property or narcotics, they certainly would have discovered
the five-pound package of methamphetamine behind the driver's seat in the truck." In
other words, the misrepresentation did not "materially mislead defendant as to the
privacy rights he was surrendering." (Avalos (1996) 47 Cal.App.4th 1569, 1579.)
(Note that there was no deception of the real or underlying purpose in the case because
the officer made it clear that he wanted to enter the vehicle to search for illegal goods.)
Finally, remember that it is possible to get a voluntary consent from a vehicle occupant or
other person to search the person's residence, even where the person has been detained,
arrested and handcuffed, and/or not Mirandized. (James (1977) 19 Cal.3d 99, 22; Llamas
(1991) 235 Cal.App.3d 441, 447.)
"Authority" to consent involves the issue of whether the person giving you permission to
search has the legal authority, or "apparent" authority, to do so.
Example:
Consent from the owner of an automobile to search "for anything helpful" permitted
police to examine and remove clothing left inside by, and belonging to, a different
person who was neither present nor contacted. (Clark (1993) 5 Cal.4th 950, 979.)
"Scope" of consent involves the problem of limitations, i.e., whether the consent was intended
to encompass the area you searched. The United States Supreme Court has held that the
scope of a vehicle search includes any place it is objectively reasonable for you to believe that
the stated object of your search might be located. (Jimeno (1991) 500 U.S. 248, 251.) "The
scope of a consent to search is measured by a standard of objective reasonableness: 'what
would a reasonable person have understood by the exchange between the officer and the
suspect.'" ($48,715 (1997) 58 Cal.App.4th 1507, 1515.)
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Thus, for example, consent to search for drugs in a vehicle would include consent to search
any containers that might have drugs inside them. (Jimeno (1991) 500 U.S. 248, 251;
$48,715 (1997) 58 Cal.App.4th 1507, 1515; see also Bell (1996) 43 Cal.App.4th 754, 770;
Williams (1980) 114 Cal.App.3d 67, 73; Cooney (1991) 235 Cal.App.3d Supp. 1, 5; but see
Cantor (2007) 149 Cal.App.4th 961.)
Example:
Officer who obtained voluntary consent to search a vehicle for drugs was entitled to
look inside a closed paper bag on the front seat because narcotics are often carried in
some type of container. However, consent to search the vehicle's trunk would not
include the right to forcibly break open a locked briefcase in the trunk. (Jimeno
(1991) 500 U.S. 248.)
Example:
Officer who obtained voluntary consent to search a vehicle for drugs did not exceed
the permissible scope of the consent by using a dog. (Bell (1996) 43 Cal.App.4th 754,
769-772; Perez (9th Cir. 1994) 37 F.3d 510, 516; $48,715 (1997) 58 Cal.App.4th
1507, 1515.)
Example:
Officer who obtained a voluntary and unrestricted consent to search a vehicle for
drugs was entitled to take the keys from the hatchback lock, unlock a "side panel"
compartment in the hatchback area, and remove a cardboard partition inside the
compartment because drugs might have been located there and no forcing, prying, or
breaking was involved. (Gutierrez-Mederos (9th Cir. 1992) 965 F.2d 800.)
Example:
Officer who obtained voluntary and unrestricted consent to search vehicle for drugs
during a traffic stop, including specific consent for the trunk and the glove
compartment, was entitled to unscrew and remove a plastic vent in the door panel.
(Crenshaw (1992) 9 Cal.App.4th 1403.)
Example:
Police had authority to open a locked briefcase (by using the combination) in an
automobile because the driver had signed a written consent form that authorized a
"complete" search and provided permission to remove "any letters, papers, materials,
or other property which they may desire." (Reeves (9th Cir. 1993) 6 F.3d 660.)
Example:
Officer asked if he could "look" for anything the driver and passenger were "not
supposed to have." Their consent was "general consent" to search the entire vehicle.
(McWeeney (9th Cir. 2006) 454 F.3d 1030, 1034.)
Example:
Officers asked for permission to conduct a "real quick" "check" of defendant's car.
After an intensive 15-minute search, the officer unscrewed the panel off the back of a
record cleaning machine found in the trunk. HELD: The search exceeded the scope
of defendant's limited consent. "A piece of equipment that can only be opened with a
screwdriver is analogous to a locked or sealed container." (Cantor (2007) 149
Cal.App.4th 961, 967 [note that had the officer qualified his request as a search for
drugs, the court might have approved the search].)
"Scope" of consent can also refer to the number of times a search can be conducted. In some
circumstances, a consent to search may justify conducting more than one search when it is
objectively reasonable for an officer to conclude that the second or subsequent search falls
within the scope of the initial consent.
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Example:
Valencia consented to a search of his pickup after he was stopped for a broken
taillight. While one officer conducted a cursory search of the cab and cargo area, his
partner learned that Valencia might have outstanding warrants. Valencia was
transported to the station so that they could determine if the warrants were valid, and
his truck was driven to the station by one of the officers. A second search of the truck
at the station uncovered cocaine. HELD: The second search of the truck was within
the scope of Valencia's consent under the very particular facts of this case. The court
found it significant that the officers had maintained continuous control over the truck
and the contents could have been no different from earlier when consent was given.
(Valenica (2011) 201 Cal.App.4th 922.) (Note that this case could have been decided
against the officers on just a few change of facts.)
For a more complete discussion of "Consent" issues, see Chapter 3-VI.
A.
Always Ask for Consent
Always seek consent to search no matter what other authority you may have for your search.
It can never hurt and it may validate an otherwise bad search.
Example:
B.
Officers stop a vehicle on "reasonable suspicion" that murder victim was killed in the
car. Although they believe they have probable cause to search the car, they wisely ask
for and obtain consent to search from the driver. Much evidence, including blood, is
obtained in the search. Even if a court ruled that the officers did not have probable
cause, the search would nevertheless be upheld based on consent.
Stolen Vehicles
Motorists do not have a reasonable expectation of privacy in a vehicle identification number,
and you may inspect a VIN number whether or not you think the vehicle is stolen. (Class
(1986) 475 U.S. 106, 114; see also Hackett (1981) 115 Cal.App.3d 592 [owner consents to
search for VIN by reporting a stolen vehicle].)
Note:
Removing or altering a VIN number to misrepresent or prevent the vehicle's
ID in connection with a sale, transfer, export, etc., is a felony. (Veh. Code, §
10802.)
Furthermore, once you determine that the car is stolen, you can search it because it is
evidence or an "instrumentality" of the crime. (Kelly (1981) 125 Cal.App.3d 575.)
Additionally, even though a thief does not have "standing" to object to the search of the car he
has stolen, it never hurts to seek consent to search a vehicle that you believe is stolen.
1.
Containers in the Vehicle
Always ask what containers in the vehicle belong to the occupants.
If the occupants deny ownership of any of the containers (which they often will if it contains
crime-related evidence), the containers are either abandoned or may be inventoried to
determine ownership.
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If an occupant claims ownership, she has at least "tied herself" to the container's contents
(then ask for consent to search it).
Establishing ownership of objects is particularly important because someone who disclaims
ownership may lack "standing" in court to raise the issue of an illegal search or seizure.
(Dasilva (1989) 207 Cal.App.3d 43; Gonzales (9th Cir. 1992) 979 F.2d 711, 714.)
2.
Consent from the Victim
When a victim reports a vehicle stolen, it is good practice to get express consent to do a full
search of the car in the event it is found.
VIII.
THE VEHICLE AS EVIDENCE/INSTRUMENTALITY OF A CRIME
When officers seize an automobile incident to a lawful arrest and the vehicle itself is evidence
of the commission of the crime for which the arrest is made, the subsequent examination of
the vehicle does not constitute a "search" within the meaning of the California and federal
Constitutions. (Rogers (1978) 21 Cal.3d 542; accord, Bittaker (1989) 48 Cal.3d 1046; Diaz
(2013) 213 Cal.App.4th 743.)
In other words, when the car itself constitutes evidence and/or needs scientific examination,
as opposed to merely acting as a "container" of incriminating articles, you may seize it
without a warrant and wait until later for an examination performed in accordance with sound
scientific procedures. (Griffin (1988) 46 Cal.3d 1011.)
Example:
Where female victims had been kidnapped and raped in the defendant's van, it was
lawful for the police, when they arrested the defendant at his residence, to seize and
impound his van, to enter it without a warrant three days later to conduct a scientific
examination, and to seize evidentiary items observed in plain view at that time.
(Bittaker (1989) 48 Cal.3d 1046.)
Other "instrumentality" examples include: (1) a car in which murder victim has been shot
(Teale (1970) 70 Cal.3d 497); (2) a car in which kidnap victim has been kidnapped (North
(1972) 8 Cal.3d 301); (3) a car that has been stolen (Kelly (1981) 125 Cal.App.3d 575); (4) a
car that has been involved in a hit-and-run offense (Rice (1981) 126 Cal.App.3d 477); and (5)
a vehicle involved in a vehicular manslaughter (Diaz (2013) 213 Cal.App.4th 743).
Example:
Over a year after a fatal collision, the acceleration and braking data was downloaded
from the SDM "black box" in defendant's impounded SUV. A warrant was not
required because the vehicle was an instrumentality of the crime of vehicular
manslaughter. The court also noted that defendant did not have a reasonable
expectation of privacy in the SDM data because the speed of a vehicle may be
measured by observation and both speed and the use of brakes can be observed while
driving. (Diaz (2013) 213 Cal.App.4th 743.)
However, a vehicle may not be considered an "instrumentality" just because it was used in the
perpetration of a crime or was used to transport evidence or contraband. (Minjares (1979) 24
Cal.3d 410; Gee (1982) 130 Cal.App.3d 174.)
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Finally, even though a warrant is not required under the "instrumentality" exception,
obtaining a warrant for a scientific examination of a car insulates you from any challenges
regarding a search.
IX.
VEHICLE IMPOUNDS/INVENTORIES
A.
Impounds
California law enforcement officers under certain conditions are authorized to impound a
motor vehicle. An individual officer's decision to impound must be exercised according to
standardized criteria, which include statutory authority for the impound, i.e., Vehicle Code
section 22651. (Green (1996) 46 Cal.App.4th 367, 372.)
Example:
Officer's discretionary decision to impound and tow was valid, despite the absence of
a written manual or guidelines because the decision complied with verbal training and
statutory guidelines and was done to ensure the security of the van. (Benites (1992) 9
Cal.App.4th 309, 327-328.)
Example:
Following a lawful traffic stop for an equipment violation, the officer discovered that
the driver had a suspended license. To prevent the driver from simply driving away
afterwards, it was the officer's policy to have the vehicle towed and impounded.
During the inventory, he discovered narcotics, so he arrested the driver and took him
into custody, leaving the car locked on the side of the road. Although the citation was
never issued and the vehicle was never towed, the inventory was legal. (Burch (1986)
188 Cal.App.3d 172.)
Example:
Shafrir was arrested for DUI after a 3 a.m. high-speed CHP chase (up to 110 miles per
hour) across the San Francisco Bay Bridge that terminated in Oakland. Shafrir was
the only occupant, and the officers decided to impound the late-model Mercedes
pursuant to Vehicle Code section 22651, subdivision (h), and for safekeeping because
the area was known for auto thefts. The People appealed after the trial court
suppressed the large bags of marijuana and $50,000 cash found in the inventory of the
trunk on the ground that the portion of the CHP manual concerning impounds "lacked
'guidelines in understanding what safekeeping means . . . .'" HELD: The officer's
reason for the impound--to protect the Mercedes from theft or damage--was an
"eminently reasonable community caretaking justification." The appellate court added
that had the car been left in the area and damaged "the recriminations about police
misjudgment would have been shrill." (Shafrir (2010) 183 Cal.App.4th 1238.)
However, there appears to be some tension among the courts as to whether Vehicle Code
section 22651 is sufficient constitutional authority for an impound. The Ninth Circuit Court
of Appeals and one California appellate court have determined that statutory authority for
impounds is insufficient, in itself, to justify a vehicle impound. These courts additionally
require a separate, independent justification for the impound under the "community
caretaking" exception to the warrant requirement. (Miranda (9th Cir. 2005) 429 F.3d 858;
Williams (2006) 145 Cal.App.4th 756; see Cervantes (9th Cir. 2012) 703 F.3d 1135; Maddox
(9th Cir. 2010) 614 F.3d 1046, 1050; but see Suff (2014) 58 Cal.4th 1013, 1056, and Hoyos
(2007) 41 Cal.4th 872, 892--no mention of the community caretaking requirement.)
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Example:
An Oregon officer was not allowed to rely on department policy or a city ordinance
permitting vehicle tows whenever a driver is cited for unlicensed driving. Because the
driver had parked the car in her own driveway, the rationale for permitting an
impound--"community caretaking"--did not apply. (Miranda (9th Cir. 2005) 429 F.3d
858; see Cervantes (9th Cir. 2012) 703 F.3d 1135--same result even though car not in
close proximity to driver's house.)
Example:
Fresno Sheriff's Office impounded a truck after citing the driver for driving an
unregistered vehicle on a suspended license. The truck was parked in a convenience
store parking lot at the time of the impound. HELD: The impound was justified
under the "community caretaking" doctrine. The truck was in a commercial parking
lot, and "the Department's decision to impound plaintiff's truck promoted public safety
by preventing the truck from being operated on public highways and streets while it
remained unregistered." (Halajian (2012) 209 Cal.App.4th 1, 15-16; accord, Jensen
(9th Cir. 2005) 425 F.3d 698, 706--lawful impound where vehicle parked in the road
with reasonable concerns about vandalism; Hallstrom (9th Cir. 1993) 991 F.2d 1473,
1478--towing protected the car from vandalism or theft.)
Example:
Santa Monica police stopped Williams for driving without a seatbelt. Williams
happened to be near his residence and legally parked his rental car along the curb in
response to the officer's overhead lights. The officer obtained Williams' license and
learned that he was subject to an outstanding arrest warrant. The officer arrested
Williams, impounded the car pursuant to Vehicle Code section 22651, subdivision (h),
and searched it prior to towing. HELD: The impound of a car lawfully parked outside
the driver's residence was unlawful absent evidence that impounding the car served
any "community caretaking" function. (Williams (2006) 145 Cal.App.4th 756, 763.)
The Williams court explained that the statutory authority to impound set forth in Vehicle
Code section 22651 "may constitute a standardized policy guiding officers' discretion"
whether to impound following arrest, but that was only half of the inquiry. In addition to
standardized policy, there also must be a "community caretaking" purpose for impounding the
car in those circumstances. (Williams (2006) 145 Cal.App.4th 756, 763.)
What, then, qualifies as proper community caretaking justifying vehicle impounds? The
Williams court listed the following considerations: Would the car be stolen, broken into, or
vandalized where it was parked? Was it blocking a driveway or crosswalk? Did it pose a
hazard or impediment to other traffic? (Quick (2016) 5 Cal.App.5th 1006--car parked 24
inches into the roadway was a traffic hazard.) Would leaving it there result in its immediate
and continued unlawful operation by an unlicensed driver? (See Williams (2006) 145
Cal.App.4th 756, 762-763; Halajian (2012) 209 Cal.App.4th 1, 15-16; Torres (2010) 188
Cal.App.4th 775.) The Supreme Court has noted that the size and inherent mobility of cars
make them susceptible to theft and vandalism. (Chadwick (1977) 433 U.S. 1, 13, fn 7.)
Other courts have also noted the legitimate concern that an unlicensed driver could merely
return to the vehicle and drive away. (Halajian (2012) 209 Cal.App.4th 1, 15-16; Benites
(1992) 9 Cal.App.4th 309, 315; Burch (1986) 188 Cal.App.3d 172, 180.)
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The California Supreme Court has not issued any decisions addressing Williams or the Ninth
Circuit Miranda decision. The Court's three post-Williams cases indicate that Vehicle Code
section 22651 does provide sufficient authority for an impound. In Hoyos (2007) 41 Cal.4th
872, 892, citing only Vehicle Code section 22651, subdivision (p), the California Supreme
Court found that an impound was lawful where neither the driver nor passenger produced a
valid driver's license. Similarly, in Redd (2010) 48 Cal.4th 691, 721, the Court held that the
officer "had authority under state law to impound defendant's vehicle" pursuant to Vehicle
Code section 22651, subdivisions (h)(1) and (o)(1), because the officer had arrested the
defendant and because the registration had expired more than six months earlier. In Suff
(2014) 58 Cal.4th 1013, 1056, citing only Vehicle Code section 22651, former subdivision
(o)(1), the Court stated in a single sentence that "[u]pon determining that the registration of
defendant's van had expired more than a year earlier, the officer was authorized to impound
the van." (See also Shafrir (2010) 183 Cal.App.4th 1238, 1246, applying the general Fourth
Amendment test of "reasonableness" to the decision to impound.)
At this time, to avoid the possibility of a civil claim under the Ninth Circuit Miranda decision,
the safest course of action would be to have an articulable reason why impounding a vehicle
was necessary in addition to the statutory basis authorizing the impound.
Note:
"Discretionary" impounds should be distinguished from cases in which the
vehicle is an instrumentality of the crime. If the vehicle is used in a speed
contest (Veh. Code, § 23109) or the driver is charged with reckless driving
(Veh. Code, § 23103), officers are expressly authorized by statute to seize and
impound the vehicle used in the commission of the crimes. (Veh. Code, §
23109.2.)
Also, if the only articulable reason for impounding a vehicle is to conduct an investigatory
search, the evidence located in the inventory could be subject to suppression. One California
appellate court has ruled that inventory evidence had to be suppressed where the searching
officer (1) testified that the inventory was a pretext for an investigatory search, (2) did not
identify any of the community caretaking purposes identified in Williams as a reason for the
impound/inventory, and (3) did not offer any standardized policy for the decision to impound
a vehicle. (Torres (2010) 188 Cal.App.4th 775.)
Example:
The narcotics team wanted Torres stopped on a traffic offense, and deputies stopped
him for failing to signal a turn. Upon determining that Torres was an unlicensed
driver, they impounded his truck. The lead deputy testified that he was "basically
using the inventory search as the means to go look for whatever narcotics-related
evidence might be in" the truck. That was also his reason for deciding to impound the
truck after a traffic stop. He did not establish any "community caretaking function
warranting the impoundment." HELD: The court suppressed the methamphetamine
found in the truck and the three additional pounds of methamphetamine, the cocaine, a
rifle, and over $113,000 in cash found in defendant's home. (Torres (2010) 188
Cal.App.4th 775.)
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Note:
4.19
Although Torres reflects the danger of what happens when a record fails to
contain evidence of approved grounds for conducting an inventory, the case is
somewhat faulty as to the "equation" it presents for validating the decision to
impound a vehicle. The decision invites courts to look to an officer's
subjective motivation in controlling whether a particular impound/inventory is
lawful. The Supreme Court has invalidated the consideration of an individual
officer's subjective motivation when conducting "programmatic searches."
(See Brigham City v. Stuart (2006) 547 U.S. 398, 405.)
Finally, note that impounds and inventories are interconnected in terms of their legitimacy.
An inventory "conducted pursuant to an unreasonable impound is itself unreasonable."
(Williams (2006) 145 Cal.App.4th 756, 761.) If the prosecution relies on a vehicle inventory
to defend a search, you can greatly assist the case by articulating your department's inventory
search policy and establishing that the search was conducted pursuant to that policy. (See
Smith (2002) 95 Cal.App.4th 283.)
B.
Inventories
Vehicle inventories are supported by three rationales:
-
protection of an owner's property while it is in police custody;
-
protection of police against claims of lost, stolen, or vandalized property; and
-
officer safety. (Bertine (1987) 479 U.S. 367, 372; Opperman (1976) 428 U.S. 364,
369; Needham (2000) 79 Cal.App.4th 260, 266.)
"When a vehicle is lawfully impounded, an inventory search pursuant to an established,
standardized procedure does not violate the Fourth Amendment." (Quick (2016) 5
Cal.App.5th 1006.) Although vehicle inventories must be "reasonable" under the Fourth
Amendment, agencies may go as far as they wish in their inventory policies. For example, it
would be valid for a policy to include looking into every part of the vehicle and also opening
closed personal containers, such as a suitcase. (Bertine (1987) 479 U.S. 367, 372; Wells
(1990) 495 U.S. 1.)
Example:
Officer conducted an inventory following a DUI arrest and prior to towing. He found
a backpack behind the front seat and inside the backpack observed a nylon bag
containing metal canisters; he found cocaine, drug paraphernalia and cash inside the
canisters and more cash in a sealed envelope in an outside zippered pouch. After
completing the inventory, the officer had the van towed to an impound lot. HELD:
The inventory was lawful. (Bertine (1987) 479 U.S. 367.)
Example:
Las Vegas police unlatched the lid of the engine's air filter compartment as part of
their vehicle inventory, which was standard practice for the agency. A Sig Sauer
semi-automatic and holster were hidden in the compartment. The Ninth Circuit
upheld the search. (Torres (9th Cir. 2016) 828 F.3d 1113.)
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Example:
A U.S. Park Police officer detained Redd in a parking lot adjacent to a federal park to
investigate a vehicle registration tag violation. After he arrested Redd for providing a
false name, failing to provide a driver's license upon request, and expired tags, the
officer impounded the car per California Vehicle Code section 22651 and conducted
an inventory of the vehicle's contents pursuant to the standard criteria of a Park Police
General Order. The court rejected Redd's claim that the federal officer was required
to establish that he had complied with the local agency's inventory policy because the
arrest occurred off federal property. (Redd (2010) 48 Cal.4th 691, 722.)
To be lawful, you must carry out any inventory in accordance with the "standardized
procedure" or "established routine" of your department or agency, i.e., some standard other
than suspected criminal activity. (Bertine (1987) 479 U.S. 367, 376; Wells (1990) 495 U.S. 1,
4; Needham (2000) 79 Cal.App.4th 260, 266; see Aguilar (1991) 228 Cal.App.3d 1049-evidence found in inventory suppressed because the decision to impound and inventory had
been for "an investigatory police motive.")
Note:
The Ninth Circuit has held that an inventory is valid if "legitimate inventory
purposes" are only part of your motive despite a "second" (investigatory)
motive. "The presence of an investigatory motive does not invalidate the
inventory search." (Bowhay (9th Cir. 1993) 992 F.2d 229, 231.)
The Supreme Court has stated, albeit in dicta, that the programmatic purpose, not the
officer's individual subjective motivation, is the correct inquiry with regard to vehicle
inventories. (See Brigham City v. Stuart (2006) 547 U.S. 398, 405; see also Fernandez
(2014) 134 S.Ct. 1126, 1134; King (2011) 563 U.S. 452, 464.) However, it has long been the
understood practice in California that officers must undertake inventories solely for
legitimate inventory purposes as set forth in the department's standardized procedure.
Having a "standardized procedure" authorizing inventories does not mean that it must be
reduced to writing. (Needham (2000) 79 Cal.App.4th 260, 266; Steeley (1989) 210
Cal.App.3d 887.) The California Court of Appeal has upheld an impound and inventory even
when the department had no policy beyond the Vehicle Code itself, where there was no
evidence that the inventory was a "ruse" to search for evidence of a crime. (Green (1996) 46
Cal.App.4th 367.) Nevertheless, some sort of a standardized policy is still highly advisable.
"Standardizing" your procedure does not mean that it must be an "all or nothing" policy,
under which you must either open every single container or no containers at all. Rather, your
policy will be sufficiently "standardized" as long as your department actually has one--an
established routine that all the officers know about and are supposed to follow concerning
vehicle inventories.
Furthermore, it is permissible for your standardized procedure to leave some discretion to a
field officer, for instance, about whether to open a given container, as long as he or she does
not have too much latitude. "A police officer may be allowed sufficient latitude to determine
whether a particular container should or should not be opened in light of the nature of the
search and characteristics of the container itself." (Wells (1990) 495 U.S. 1, 4.)
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Example:
Florida Highway Patrol stopped Wells for speeding and arrested him for DUI. During
a subsequent inventory of the impounded car, a locked suitcase in the trunk was forced
open, revealing a garbage bag full of marijuana. The court found the discovery to be
illegal because the Highway Patrol had no policy whatsoever concerning whether or
what types of containers should be opened. The absence of any policy left the officer
with so much discretion that he could turn the supposed inventory into "a purposeful
and general means of discovering evidence of crime," i.e., "a general rummaging in
order to discover incriminating evidence." (Wells (1990) 495 U.S. 1, 4.)
Example:
Inventory of motorcycle upheld, including bags, pouches and any other container
temporarily or permanently attached to it or built into it, where officer was within the
discretion of his department's unwritten policy and where there was no evidence he
undertook the inventory as a ruse or pretext to search for evidence of a crime.
(Needham (2000) 79 Cal.App.4th 260, 266-268.)
Because your authority with regard to inventories is specifically linked to your department's
internal protocols, at a suppression hearing you will have to be able to identify your
department's standardized policies and practices regarding inventories. You will then have to
show that the inventory conducted in that case complied with your department's policies.
Example:
Nottoli was stopped for a traffic offense and placed under arrest for driving with an
expired license and for being under the influence of a controlled substance. The
deputy who conducted the inventory of the car found a smart phone in the cup holder
and pressed a key to see if it was working. The wallpaper showed a masked person
who appeared to be Nottoli wielding possible illegal assault rifles. Another deputy
then looked through the cell phone's text messages, photographs, and emails. HELD:
The record did not support checking the phone to see if it was functional or searching
through the phone's contents. Without ruling that the phone could have been searched
if further evidence had been developed, the court based its ruling on the fact that the
record lacked evidence that turning on the phone and searching it complied with the
department's standardized procedures. (Nottoli (2011) 199 Cal.App.4th 531, 546.)
Example:
The court rejected a claim that evidence would have been inevitably discovered in an
inventory search absent testimony that the officers were complying with department
impound and inventory policies when they searched the car or that they were planning
to have the car towed. (Wallace (2017) 15 Cal.App.5th 82.)
C.
Other Considerations
An inventory may be conducted only after the vehicle has come into lawful police custody.
Typically, this occurs after the driver has been cited or arrested or the vehicle has been in a
traffic accident. If the police do not have lawful custody of the vehicle, no inventory may be
carried out.
If the vehicle is going to be inventoried, but the driver or other occupant requests possession
of some object, such as a tote bag or jacket, you may check the object for weapons for your
own safety before handing it over, for example, by patting it down or, if necessary, by looking
inside. (Needham (2000) 79 Cal.App.4th 260, 266.)
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As for actually inventorying the returned object, not all courts agree. However, at least one
case holds that an inventory is proper because the object was inside the vehicle at the time it
was impounded, at least where the inventory is carried out in good faith for that purpose and
consistent with your department's standardized policy. (Salcero (1992) 6 Cal.App.4th 720;
Needham (2000) 79 Cal.App.4th 260.)
D.
Repossessed Vehicles
If a licensed repossession agency has already repossessed a vehicle and completed the
statutorily required inventory, you may examine and seize, without a warrant, inventoried
items of personal property that you have reason to believe connect the suspect with the crime
you are investigating. (Shegog (1986) 184 Cal.App.3d 899.) You may not, however, use the
repossessor as your agent to go "collect" a car to avoid the warrant requirement.
X.
ABANDONMENT
A person who "abandons" a vehicle loses his expectation of privacy in it. Therefore, at least
in theory, you may search an abandoned vehicle.
In practice, however, this theory is not used successfully very often. The courts are rather
reluctant to rule that a person has abandoned his car. You should have excellent facts before
attempting to justify your entry and search of a vehicle on this theory.
Example:
XI.
Smith shot and killed two officers. He escaped in a car that he had rented under a
fictitious name and equipped with stolen license plates. After the offense, he parked
the car in an alley and flew to Chicago. Under these circumstances, it was proper to
consider the vehicle abandoned. (Smith (1966) 63 Cal.2d 779.)
EMERGENCY
The "emergency" exception exists for vehicles, just as it does for premises. Typically, the
emergency or "exigency" will take the form of "hot pursuit" of a dangerous or armed felon,
where you are entering the vehicle to seize a gun or ascertain the suspect's identification.
(Johnson (1981) 30 Cal.3d 444; Panfilli (1983) 145 Cal.App.3d 387; Kilpatrick (1980) 105
Cal.App.3d 401.)
However, you may also enter a vehicle if it is necessary to save lives or property.
Example:
The driver (sole occupant) is slumped over, does not respond, and possibly has
suffered a heart attack. You may enter the vehicle.
Example:
Smoke is pouring out from under the hood of a parked car with the owner nowhere
around. You may enter the vehicle.
Example:
A cop-killer crashed her car and ran off on foot. You are seeking her identity, address
and/or description to aid in her immediate capture. You may enter the vehicle.
Example:
Officers who respond to a reported overdose can enter a car in which the unresponsive
person was a recent occupant to search for reported suicide note and evidence of
narcotics. (Ames (9th Cir. 2017) 846 F.3d 340.)
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5-i
TABLE OF CONTENTS
I.
II.
Page
INTRODUCTION ............................................................................................................................5.1
BORDER SEARCHES ....................................................................................................................5.1
A. Detentions/Searches at the Border, its Functional Equivalent,
or Fixed Checkpoints .................................................................................................. 5.1
B. Detentions by Roving Patrols ........................................................................................ 5.2
C. Incoming Mail/Controlled Deliveries ........................................................................... 5.2a
III.
IV.
V.
VI.
IMMIGRATION HOLDS ................................................................................................................5.2a
ROADBLOCKS/CHECKPOINTS ..................................................................................................5.2b
A. Sobriety Checkpoints ..................................................................................................................5.2c
AIRPORT SEARCHES....................................................................................................................5.3
DOGS ...............................................................................................................................................5.4
A. Sniffing .......................................................................................................................... 5.4
B. Provides Probable Cause Only ...................................................................................... 5.4a
VII.
PROBATION AND PAROLE SEARCHES/COMMUNITY SUPERVISION ...............................5.4b
A. Probation Searches ........................................................................................................ 5.5
1. Knowledge of the Search Condition ....................................................................... 5.5
2. Contacting the Probation Officer ............................................................................ 5.6
3. Amount of Suspicion Required ............................................................................... 5.6a
4. California Law vs. Ninth Circuit Law ..................................................................... 5.6b
B. Parole Searches ............................................................................................................. 5.6c
1. Knowledge of the Search Condition ....................................................................... 5.6d
2. California Law vs. Federal Law ............................................................................. 5.6e
C. Residences/"Possessions" .............................................................................................. 5.6f
1. Knock and Notice .................................................................................................... 5.6f
2. Probable Cause to Arrest ......................................................................................... 5.6f
3. Entering Residence to Arrest................................................................................... 5.6f
4. Protective Sweeps and Detentions ......................................................................... 5.6g
5. Joint Occupants ....................................................................................................... 5.6g
6. What Establishes a "Residence"? ............................................................................ 5.6i
7. Searching Objects and "Possessions" ...................................................................... 5.6i
D. Pre-Trial "O.R." Release Searches ................................................................................ 5.6j
E. Global Positioning System Monitoring ......................................................................... 5.6k
F. Community Supervision--PRCS and Mandatory Supervision ...................................... 5.6k
1. Postrelease Community Supervision (PRCS) ......................................................... 5.6k
2. Penal Code § 1170(h)(5)(B) Custody/Mandatory Supervision ............................... 5.6l
3. Pretrial Electronic Monitoring ................................................................................ 5.6m
G. Arrest of Supervised Offenders ..................................................................................... 5.6m
H. Warrantless DUI Blood Draws ..................................................................................... 5.6n
I. Electronic Device Search Conditions ............................................................................ 5.6n
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Page
JAIL/PRISON...................................................................................................................................5.7
A. In General ..................................................................................................................... 5.7
B. Booking Searches .......................................................................................................... 5.8
1. Strip and Body Cavity Searches .............................................................................. 5.8a
C. Booking Protocols ......................................................................................................... 5.8c
1. Telephone Calls ....................................................................................................... 5.8c
2. Bail Collection Arrestees ........................................................................................ 5.8c
D. Post-Booking Searches .................................................................................................. 5.8d
E. Conversations ................................................................................................................ 5.8d
F. Visitors and Their Vehicles ........................................................................................... 5.8e
IX.
EAVESDROPPING .........................................................................................................................5.8e
A.
B.
C.
D.
In General ...................................................................................................................... 5.8e
Wiretapping ................................................................................................................... 5.8g
"Pen Registers" and "Traps".......................................................................................... 5.9
Electronic Eavesdropping and Recording ..................................................................... 5.10
1. Statutory Prohibition ............................................................................................... 5.10
a. Exception - One Party Consents and Peace Officer Monitors .......................... 5.10b
b. Exception - To Gather Evidence of Certain Crimes.......................................... 5.10d
c. Exception - All Parties Consent ........................................................................ 5.11
2. Constitutional Prohibitions ...................................................................................... 5.11
E. Unaided Eavesdropping ............................................................................................... 5.12
F. Police Radio Interception ............................................................................................. 5.12
G. "Bugging" In-Custody Conversations ........................................................................... 5.12a
X.
XI.
XII.
ELECTRONIC SURVEILLANCE/BEEPERS ................................................................................5.12c
BUSINESS RECORDS ....................................................................................................................5.13
PRIVATE PERSONS ......................................................................................................................5.14
A.
B.
C.
D.
XIII.
XIV.
XV.
"Private" Arrests ............................................................................................................ 5.14
"Private" Searches and Seizures .................................................................................... 5.15
Agency/"Joint Operation" ............................................................................................. 5.16
Security Guards ............................................................................................................ 5.17
MAIL SEARCHES ..........................................................................................................................5.18
COAST GUARD SEARCHES .......................................................................................................5.19
AGRICULTURAL/FISH AND GAME INSPECTIONS ................................................................5.20
A. Agricultural Border Stations ......................................................................................... 5.20
B. Fish and Game Inspections ........................................................................................... 5.20
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I.
5.1
INTRODUCTION
This chapter discusses search and seizure in specific contexts. For further background
considerations important to your understanding of these general areas, you should read the
"Introduction" to Chapter 2.
II.
BORDER SEARCHES
A.
Detentions/Searches at the Border, its Functional Equivalent, or Fixed Checkpoints
Border Patrol agents may stop travelers at the border, or near the border at its "functional
equivalent," without probable cause or reasonable suspicion. Border stops are deemed
reasonable "by the single fact that the person or item in question had entered into our country
from outside." (Ramsey (1977) 431 U.S. 606, 619; Valenzuela (1994) 28 Cal.App.4th 817,
824.) Routine searches of persons and property coming into the country do not require
probable cause or reasonable suspicion. (Montoya de Hernandez (1985) 473 U.S. 531, 538.)
Border Patrol agents may also stop vehicles at reasonably located, fixed, permanent
checkpoints many miles away from the border without any individualized or reasonable
suspicion that the particular vehicle contains illegal aliens. (Martinez-Fuerte (1976) 428 U.S.
543, 562.) This is so because the procedure is routinely and evenly applied to all vehicles.
(Hernandez (9th Cir. 1984) 739 F.2d 484, 486-487.)
Every vehicle entering the country may be searched at the border or its functional equivalent
without cause or suspicion because the United States has a "paramount interest" in protecting
its "territorial integrity." (Flores-Montano (2004) 541 U.S. 149, 152-153 [okay to remove and
disassemble vehicle gas tank without reasonable suspicion]; Cortez-Rocha (9th Cir. 2004)
383 F.3d 1093, 1096 [okay to cut open spare tire]; Chaudhry (9th Cir. 2005) 424 F.3d 1051,
1052 [okay to drill a hole in the bed of a pickup truck]; see also Laborde (2008) 163
Cal.App.4th 870, 877 ["functional equivalent" rule applied to cabin searches of a cruise ship
at first U.S. port].) Customs officials at the border may search closed containers and their
contents, including a laptop computer or other personal electronic storage devices. (Endacott
(2008) 164 Cal.App.4th 1346; Arnold (9th Cir. 2008) 523 F.3d 941, 946.) They may also
move the containers to a secondary site for inspection as a continuation of the original border
search if the property has not been officially cleared for entry. (Cotterman (9th Cir. 2011)
637 F.3d 1068 [search of laptop computer two days later and 170 miles from the border].)
Furthermore, motorists stopped at such checkpoints may be referred to secondary inspection
areas at the same location on the basis of something less than reasonable suspicion, for
example, largely, although not solely, on the basis of apparent Mexican ancestry. (MartinezFuerte (1976) 428 U.S. 543, 563.) The brief use of handcuffs does not necessarily turn a
reasonable detention into an arrest requiring probable cause. (Nava (9th Cir. 2004) 363 F.3d
942; Bravo (9th Cir. 2002) 295 F.3d 1002; Zaragoza (9th Cir. 2002) 295 F.3d 1025;
Hernandez (9th Cir. 2002) 314 F.3d 430, 434.)
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The continued detention of a traveler at the border or a checkpoint, beyond the scope of a
routine customs search and inspection, requires reasonable suspicion that the suspect is
smuggling contraband in his or her alimentary canal (Montoya de Hernandez (1985) 473 U.S.
531, 541) or is committing some other offense. A passenger's presence in a vehicle carrying a
commercial quantity of drugs across the border is sufficient probable cause for arrest.
(Carranza (9th Cir. 2002) 289 F.3d 634, 641; Hernandez (9th Cir. 2002) 314 F.3d 430, 434.)
Reasonable suspicion is also necessary for an "extended border search." Extended border
searches occur near the border, but after the border has already been crossed, and must be
based on articulable suspicion that (1) the contraband was in or on the vehicle at the time of
entry into the country and (2) that a search will uncover contraband or evidence of crime.
(Villasenor (9th Cir. 2010) 608 F.3d 467, 471-472; Alfonso (9th Cir. 1985) 759 F.2d 728.)
Searches at checkpoints removed from the border can be conducted only with probable cause
or consent. (Ortiz (1975) 422 U.S. 891, 897; Valenzuela (1994) 28 Cal.App.4th 817, 824825.)
B.
Detentions by "Roving Patrols"
Border Patrol agents may operate roving patrols anywhere, but they need "reasonable
suspicion" of criminal activity before they may detain a vehicle. In other words, such agents
"may stop vehicles only if they are aware of specific facts, together with rational inferences
from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may
be illegally in the country." (Brignoni-Ponce (1975) 422 U.S. 873, 884; Valenzuela (1994) 28
Cal.App.4th 817, 825.) And, again, a vehicle may be searched only with probable cause or
consent. (Ortiz (1975) 422 U.S. 891, 895; Almeida-Sanchez (1973) 413 U.S. 266, 273;
Valenzuela (1994) 28 Cal.App.4th 817, 824.)
The U.S. Supreme Court has upheld a vehicle stop by a roving border patrol based on
circumstances that the Ninth Circuit previously considered insufficient. The Arvizu decision
attests to the importance of reporting all facts that contribute to an agent's suspicion of
criminal activity.
Example:
A Border Patrol agent stopped Arvizu's minivan on an unpaved backroad that
circumvented a Border Patrol checkpoint. The van was registered to an address just
four blocks north of the Mexican border in an area known for alien and narcotics
smuggling. The Supreme Court held that the traffic stop was supported by reasonable
suspicion: Arvizu was driving on backroads that avoided the checkpoint right before a
shift change during the optimum time for smuggling; minivans were commonly used
in the area for smuggling; Arvizu slowed down from 50-55 mph to 20-25 mph when
he saw the patrol vehicle; Arvizu appeared stiff with rigid posture and would not look
at the agent, which was uncommon for most drivers in that isolated area; the two
children in the rear seat rode with their knees unusually high, as if their feet were
propped up on cargo; when the agent began to follow the van, all the children in the
van simultaneously raised their hands and began to wave at the agent for several
minutes in an abnormal pattern, as if instructed to do so; and, before the checkpoint,
Arvizu abruptly turned onto an unpaved road that was not suitable for his minivan and
did not lead to known recreational areas. (Arvizu (2002) 534 U.S. 266.)
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Note:
5.2a
In light of the Arvizu decision, earlier cases finding insufficient suspicious
factors to justify a detention should be carefully re-evaluated, as they may no
longer accurately reflect the law. See, for instance, Valenzuela (1994) 28
Cal.App.4th 817, 825-831; Hokit (1998) 66 Cal.App.4th 1013, 1017-1019;
Ordaz (9th Cir. 1998) 145 F.3d 1111; and Jimenez-Medina (9th Cir. 1999) 173
F.3d 752. "A series of innocent acts may be enough for reasonable suspicion
justifying an investigatory stop, even though the circumstances amount to far
less than probable cause." (Valdes-Vega (9th Cir. 2013) 738 F.3d 1074.)
An extended border detention that utilizes a "controlled tire deflation device" (CTDD) to
deflate the suspect vehicle's tires is not an arrest and requires only a showing of reasonable
suspicion. (Guzman-Padilla (9th Cir. 2009) 573 F.3d 865, 886.)
C.
Incoming Mail/Controlled Deliveries
It does not violate the Fourth Amendment for a Customs inspector to randomly inspect
incoming mail from a foreign country without any particularized suspicion, and any
contraband or other evidence discovered in this manner will not be suppressed even if federal
regulations prohibit opening such mail absent probable cause. (Blardony (1998) 66
Cal.App.4th 791, 794; Ramsey (1977) 431 U.S. 606, 619-622.) (For a discussion of
searching domestic mail, see Ch. 5-XIII.) Customs inspectors may also search international
packages before they are placed in containers for departure from the United States.
(Abbouchi (9th Cir. 2007) 520 F.3d 850, 855; see also Seljan (9th Cir. 2008) 547 F.3d 993.)
Likewise, if an object is lawfully opened by a common carrier or Customs officials and law
enforcement personnel have lawfully ascertained that the contents are contraband, no
protected privacy interest remains in the container. It may be resealed and observed during a
"controlled delivery." If no substantial gap in surveillance occurred, officers may then seize
and reopen the container without a warrant; no "search" has occurred within the meaning of
the Fourth Amendment. (Andreas (1983) 463 U.S. 765, 773; Salih (1985) 173 Cal.App.3d
1009, 1020.)
III.
IMMIGRATION HOLDS
In January 2014, the Legislature enacted Government Code sections 7282 and 7282.5
articulating "Standards for Responding to United States Immigration and Custom
Enforcement Holds." The very long and detailed section 7282.5 sets forth the only
circumstances under which law enforcement officials have discretion to cooperate with
federal immigration officials concerning continued detentions based on immigration holds
when the detainee otherwise would become eligible for release from custody. The provisions
are referred to as the "Trust Act."
In January 2018, the "California Values Act" (sometimes referred to as "SB 54") modified
provisions of the Trust Act and set forth new rules for California law enforcement agencies'
participation in federal immigration enforcement. (Gov. Code, §§ 7284-7284.12.)
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IV.
SEARCH AND SEIZURE - MISCELLANEOUS
ROADBLOCKS/CHECKPOINTS
Certain types of blanket "regulatory searches" have been upheld by the United States and
California Supreme Courts. For instance, "sobriety checkpoints" are legal, at least where
certain safeguards and guidelines are followed. (Sitz (1990) 496 U.S. 444; Banks (1993) 6
Cal.4th 926; Ingersoll (1987) 43 Cal.3d 1321.) So are checkpoints that stop all vehicles or,
using a neutral formula, stop randomly selected vehicles to inspect license and registration
(Prouse (1979) 440 U.S. 648, 670; Alvarez (1996) 14 Cal.4th 155, 184) or, during hunting
season, to inspect hunting licenses, tags, equipment, and any wildlife taken (Perez (1996) 51
Cal.App.4th 1168, 1178; see also Maikhio (2011) 51 Cal.4th 1074--suspicionless stop and
demand unrelated to checkpoints is valid). Likewise, border checkpoints aimed at
discovering illegal aliens are also legal. (Martinez-Fuerte (1976) 428 U.S. 543.)
Furthermore, as long as a checkpoint has one of these lawful purposes as its primary
objective, there should be no problem with a checkpoint that "combines" two or more of these
purposes. For example, a checkpoint designed primarily to discover drunk drivers, and
operating under the usual safeguards and guidelines, would be lawful even where the officers
also checked the driver's license status and the vehicle registration.
A general roadblock to catch a criminal--that is, stopping all cars without any particularized
suspicion--can be legal if the crime committed was exceptionally atrocious or when such
action is necessary to prevent a grave peril. (Sirhan (1972) 7 Cal.3d 710; Schader (1965) 62
Cal.2d 716.) A checkpoint may be used for the purpose of seeking motorists' help in
providing information regarding a recent crime. (Lidster (2004) 540 U.S. 419.)
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Example:
5.2c
One week after an unknown motorist struck and killed a 70-year-old bicyclist, local
police set up a highway checkpoint at the location of the hit and run to request
assistance from the motoring public. Cars were stopped for 10 to 15 seconds while
officers distributed flyers and asked the occupants if they had seen anything the
previous weekend. Defendant Lidster was detained for sobriety testing after swerving
toward one of the checkpoints. HELD: The appropriately tailored checkpoint stops,
part of a specific criminal investigation, were reasonable under the Fourth
Amendment. (Lidster (2004) 540 U.S. 419.)
However, if the primary purpose of a checkpoint is "general crime control" designed to
discover criminal activity by the occupant of a detained vehicle, the checkpoint will be illegal.
Thus, a checkpoint whose primary purpose was to discover illegal drugs and drug-users
through the use of drug-sniffing dogs was ruled unconstitutional, even though the officers
were checking on the driver's sobriety and license status while the dog walked around the
outside of the vehicle. (Edmond (2000) 531 U.S. 32.)
Note:
A.
The "primary purpose" to be evaluated in suspicionless "programmatic
searches" concerns the "programmatic purpose," not an individual officer's
subjective state of mind: "It has nothing to do with discerning what is in the
mind of the individual officer conducting the search." (Brigham City (2006)
547 U.S. 398, 405.)
Sobriety Checkpoints
In Ingersoll (1987) 43 Cal.3d 1321, the California Supreme Court established guidelines for
what it would consider to be lawful sobriety checkpoints. The eight "functional guidelines"
provide guidance for departments and the courts in evaluating sobriety checkpoints:
(1) Supervisory-Level Decisions. "The decision to establish a sobriety checkpoint, the
selection of the site and the procedures for the checkpoint operation should be made and
established by supervisory law enforcement personnel, and not by an officer in the field."
(2) Neutral Formula. "[A] neutral formula such as every driver or every third, fifth or tenth
driver should be employed."
(3) Safety Precautions. "Proper lighting, warning signs and signals, and clearly identifiable
official vehicles and personnel are necessary to minimize the risk of danger to motorists and
police" and the "checkpoint should be operated only when traffic volume allows the operation
to be conducted safely." The court noted that screening procedures may be altered depending
on volume.
(4) Reasonable Location. "The location of checkpoints should be determined by policymaking officials rather than by officers in the field" with safety factors "considered in
choosing an appropriate location" and the sites chosen being the "most effective in achieving
the governmental interest; i.e., on roads having a high incidence of alcohol related accidents
and/or arrests."
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(5) Time and Duration. "[L]aw enforcement officials will be expected to exercise good
judgment in setting times and durations, with an eye to effectiveness of the operation, and
with the safety of motorists a coordinate consideration."
(6) Indicia of Roadblock. "The roadblock should be established with high visibility,
including warning signs, flashing lights, adequate lighting, police vehicles and the presence of
uniformed officers" for safety reasons and because "advance warning will reassure motorists
that the stop is duly authorized."
(7) Length and Nature of Detention. "Minimizing the average time each motorist is detained
is critical both to reducing the intrusiveness of the stop on the individual driver and to
maintaining safety by avoiding traffic tie-ups." The court noted that drivers displaying signs
of intoxication could then be directed to a separate area for a roadside sobriety test.
(8) Advanced Publicity. "Publicity both reduces the intrusiveness of the stop and increases
the deterrent effect of the roadblock." Note, however, that a sobriety checkpoint that
complies with the rest of the Ingersoll guidelines but is not preceded by advance publicity is
not invalid under the Fourth Amendment. (Banks (1993) 6 Cal.4th 926, 931, 949.)
When a checkpoint stop is challenged, the People must introduce sufficient evidence to
establish the legitimacy of the checkpoint. (Alvarado (2011) 193 Cal.App.4th Supp. 13.)
The California Legislature in 2012 adopted guidelines for "Sobriety Checkpoint Inspections."
Vehicle Code section 2814.2 requires that drivers "stop and submit to a sobriety checkpoint
inspection conducted by a law enforcement agency when signs and displays are posted
requiring that stop."
The section also prohibits the impoundment of a vehicle at a sobriety checkpoint if the
driver's only offense is driving without a valid license in violation of section 12500. (Veh.
Code, § 2814.2, subd. (b).) An officer's obligations if this occurs are spelled out in section
2814.2, subdivision (c):
"During the conduct of a sobriety checkpoint, if the law enforcement officer
encounters a driver who is in violation of Section 12500, the law enforcement officer
shall make a reasonable attempt to identify the registered owner of the vehicle. If the
registered owner is present, or the officer is able to identify the registered owner and
obtain the registered owner's authorization to release the motor vehicle to a licensed
driver by the end of the checkpoint, the vehicle shall be released to either the
registered owner of the vehicle if he or she is a licensed driver or to the licensed driver
authorized by the registered owner of the vehicle. If a notice to appear is issued, the
name and driver's license number of the licensed driver to whom the vehicle was
released pursuant to this subdivision shall be listed on the officer's copy of the notice
to appear issued to the unlicensed driver. When a vehicle cannot be released, the
vehicle shall be removed pursuant to subdivision (p) of Section 22651, whether a
notice to appear has been issued or not."
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V.
5.3
AIRPORT SEARCHES
Routine metal-detector searches of passengers and x-ray searches of their carry-on and
checked luggage fall under the Fourth Amendment because they are undertaken pursuant to
F.A.A. regulations. Even though such searches are not supported by "probable cause" or even
"reasonable suspicion," they nevertheless typically have been found lawful ("reasonable")
because of the strong interest in preserving public safety balanced against the limited nature
of the intrusion, i.e., searching only for weapons or explosives as opposed to evidence of a
crime. (Hyde (1974) 12 Cal.3d 158; Owens (1982) 134 Cal.App.3d 144; but see also Ross
(9th Cir. 1994) 32 F.3d 1411.) The Ninth Circuit has approved random searches even when a
bag has passed through an x-ray scan without arousing suspicion that the bag contains
weapons or explosives. (Torbet (9th Cir. 2002) 298 F.3d 1087.) Because airport searches are
based on special needs rather than a passenger's consent, a passenger cannot revoke consent
to search once he has attempted to enter the secure area of an airport. (Aukai (9th Cir. 2007)
497 F.3d 955, 961-962.)
If an airport employee undertakes a search that goes beyond the scope of these regulations,
such as by checking a suspicious object for narcotics, the search falls outside the scope of the
Fourth Amendment because he is acting as a "private citizen" rather than a governmental
agent. (Sapper (1980) 102 Cal.App.3d 301.)
In Santana (1998) 63 Cal.App.4th 543, the Fourth District Court of Appeal, after reviewing
other cases from around the country, ruled that it is legal for police to "poof" a passenger's
luggage at an airport, i.e., to squeeze luggage that has been checked, in order to smell the air
that comes out. (Here, the officer detected the smell of a fabric softener, which he knew was
used to mask the smell of drugs. He called for a narcotics-sniffing dog, which "alerted" to the
bags, leading to search warrant and the discovery of 38 pounds of marijuana.) "Poofing" of
checked airport luggage is legal because (1) "the accepted need for heightened security has
lessened air travelers' reasonable expectation of privacy" and (2) luggage checked at an
airport "is unavoidably subject to manipulation, handling and compression," so that "it is not
reasonable to believe that the air contained in checked luggage, and its odors, will remain in
the luggage."
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VI.
DOGS
A.
Sniffing
Whether the use of a dog sniff to detect narcotics is a "search" depends on where and under
what circumstances the sniff occurs. If the dog physically intrudes on the protected areas of a
householder's property for the purpose of gathering evidence, the conduct is a "search" under
the Fourth Amendment. (Jardines (2013) 133 S.Ct. 1409, 1417.) If the dog sniff occurs
elsewhere, a warrant should not be required. (Place (1983) 462 U.S. 696, 706-707; Stillwell
(2011) 197 Cal.App.4th 996; $48,715 (1997) 58 Cal.App.4th 1507, 1516.)
Example:
Miami-Dade police used a drug-sniffing dog on Jardines' front porch after receiving
an unverified tip that marijuana was being grown inside the residence. Officers
applied for a search warrant based on the dog's "alert" as to the presence of narcotics.
HELD: The use of a trained police dog to investigate a home inside the curtilage is a
"search," which was not authorized in this case. (Jardines (2013) 133 S.Ct. 1409.)
It is not a search to use a trained drug-sniffing dog under the following circumstances: from a
public street, to detect marijuana stored in a warehouse (Lingenfelter (9th Cir. 1993) 997 F.2d
632, 637-639); to detect narcotics in the trunk (Caballes (2005) 543 U.S. 405), undercarriage
(Perez (9th Cir. 1994) 37 F.3d 510, 516), or passenger compartment of a car (Bell (1996) 43
Cal.App.4th 754, 769); to detect narcotics in the bed of a pickup (Stillwell (2011) 197
Cal.App.4th 996, 1004); or to detect, from the public area of a storage facility, marijuana in a
rented storage locker (Bautista (2004) 115 Cal.App.4th 229, 235). At airports, passengers
have no reasonable expectation of privacy in their luggage that would preclude properly
trained and qualified narcotics-detection dogs from sniffing their luggage. (Mayberry (1982)
31 Cal.3d 335.) This is normally true even where the luggage is moved to give a dog easier
access. (Daugherty (1996) 50 Cal.App.4th 275, 281, fn. 1.)
Because these are not searches, neither reasonable suspicion nor probable cause is needed to
use a dog in this manner. (Lingenfelter (9th Cir. 1993) 997 F.2d 632, 637-639.) Consent is
likewise not needed. ($48,715 (1997) 58 Cal.App.4th 1507, 1516.)
Example:
While Caballes was stopped for speeding, a second state trooper who had overheard
the radio transmission drove to the scene with his narcotics-detection dog. The dog
walked around Caballes' car while the first trooper was completing the warning ticket,
and the dog "alerted" to the trunk. The entire incident lasted less than 10 minutes.
HELD: The use of a well-trained narcotics-detection dog during a lawful traffic stop
was not a search requiring reasonable suspicion or probable cause. (Caballes (2005)
543 U.S. 405.)
Example:
A dog sniff was not a Fourth Amendment search when the trained narcotics-detection
dog placed his paws on the side of a pickup truck and sniffed over and inside the bed
of the truck. The fact that the dog stuck his nose past the imaginary "plane" at the top
of the truck to sniff a backpack containing narcotics did not transform the sniff into a
search. (Stillwell (2011) 197 Cal.App.4th 996.)
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Example:
5.4a
During what started out as a traffic stop for speeding, the officer became suspicious of
drug-trafficking and asked the driver and passenger for consent to search. The driver,
first agreed then changed his mind, but the passenger said the officer could search
"just my stuff," meaning a bag and briefcase in the trunk. The passenger unlocked the
trunk, and the officer summoned his drug-sniffing dog. The dog went to the open
passenger door and alerted to the area under the passenger seat, where the officer
found a package of cocaine. HELD: (1) The officer did not need consent to have his
dog sniff the exterior of the car; (2) consent to search items in the trunk included
consent to open the trunk; (3) the trunk was not searched beyond what was in plain
view; (4) use of the dog did not exceed the scope of the defendant's consent to search
because the officer did not need any additional consent to use the dog. "Once
defendant gave [the officer] consent to search his baggage, and thus, albeit implicitly,
the trunk, a canine sniff of the trunk did not invade any legitimate expectation of
privacy. Although the dog's sense of smell was keener than that of the human police
officer, all it could reveal to police was the presence of hidden contraband." "Because
the police were in a place where they had a right to be, they had a right to use a drugsmelling dog there." The driver's consent implicitly included use of the dog in that the
police unit was clearly marked "K-9" and the defendant did not object when the dog
was brought to his vehicle. (Bell (1996) 43 Cal.App.4th 754, 769.)
You are also entitled to detain or seize an object for purposes of a dog-sniff as long as you
have at least "reasonable suspicion" that the object contains drugs. (Bell (1996) 43
Cal.App.4th 754, 769.) However, you must carry out the sniff to confirm or dispel your
suspicion relatively quickly, i.e., within the same period of time that it would be reasonable to
detain a person. (Place (1983) 462 U.S. 696, 707-709.) Note that evidence from a traffic stop
dog sniff will be subject to suppression if the driver was unlawfully detained beyond the time
needed to complete the tasks attending the traffic stop. (Rodriguez (2015) 135 S.Ct. 1609.)
Also note that the Ninth Circuit has held that the use of a dog sniff of a student in a public
school is sufficiently intrusive to constitute a "search" under the Fourth Amendment. (B.C.
(9th Cir. 1999) 192 F.3d 1260, 1265-1266.)
B.
Provides Probable Cause Only
A "reliable" dog's positive reaction to a suitcase or other object provides probable cause to
search the object or area. (Stillwell (2011) 197 Cal.App.4th 996, 1006.) If you are not
obtaining a warrant, you will still need a basis for a warrantless search, such as exigent
circumstances, consent, the vehicle exception (no warrant needed to search a closed, personal
container inside an operable vehicle if probable cause exists), searching incident to a custodial
arrest where the object is within "arm's reach" of a suspect or the search is related to the arrest
offense, or the fact that there is no reasonable expectation of privacy in the object. (See Gant
(2009) 556 U.S. 332; Mayberry (1982) 31 Cal.3d 335, 342; Stillwell (2011) 197 Cal.App.4th
996, 1006; Lingenfelter (9th Cir. 1993) 997 F.2d 632; Santana (1998) 63 Cal.App.4th 543.)
If you already have a search warrant for drugs/narcotics and related paraphernalia, it is legal
to take a trained dog along when executing the warrant. (Russell (1987) 195 Cal.App.3d
186.)
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The United States Supreme Court has set forth the requirements for establishing a dog's
reliability. "If a bona fide organization has certified a dog after testing his reliability in a
controlled setting, a court can presume (subject to any conflicting evidence offered) that the
dog's alert provides probable cause to search." Reliability can also be established, even
absent formal certification, if the dog has successfully completed a recent training program
designed to evaluate his proficiency in locating the subject of his training, e.g., narcotics. The
Court noted that the probable cause inquiry for a dog's alert is not different from the usual
inquiry whether a reasonably prudent person presented with all of the facts surrounding the
alert would believe that a search would reveal contraband or evidence of crime. "A sniff is up
to snuff when it meets that test." (Harris (2013) 133 S.Ct. 1050.) Data regarding a dog's
"success rate" is not required to establish probable cause. (Stillwell (2011) 197 Cal.App.4th
996, 1006--testimony as to the dog's training, certification, and the handler's observations
during the dog sniff consistent with the dog's training is sufficient.)
VII.
PROBATION AND PAROLE SEARCHES/COMMUNITY SUPERVISION
Historically, the two populations subject to supervision by local probation departments or
CDCR were probationers and parolees. Effective October 1, 2011, AB 109 established new
classes of offenders subject to supervision following incarceration.
In an effort to shift supervision from CDCR to local agencies, qualifying offenders who
formerly would have been on CDCR parole are now under "Postrelease Community
Supervision" (PRCS). (Pen. Code, § 3450, et seq.) Parole will still apply to offenders who do
not qualify for PRCS release. PRCS applies to prisoners whose current offenses are nonviolent, non-serious, and non-PC § 290 (called N3 or "Non/Non/Non").
AB 109 also provides new local sentencing criteria for certain felony offenders. (Pen. Code,
§ 1170, subd. (h)(5).) In lieu of state prison commitments, these felony offenders are being
sentenced directly to local jail to serve their felony sentences with or without a period of
mandatory supervision by local probation following the imposition of a jail term. These
offenders will not enter the CDCR system.
None of these new provisions changes the law regarding parole or probation detentions or
searches. A discussion of how these new offender populations affect your job as law
enforcement officers is included at the end of this section. (See Ch. 5-VII-F.)
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A.
5.5
Probation Searches
If an adult or juvenile is on searchable probation, you may search that person and any
property under his or her control without any particularized suspicion and without first
contacting the probation officer. (Bravo (1987) 43 Cal.3d 600, 609-610; Tyrell J. (1994) 8
Cal.4th 68, 87 (overruled on other grounds).) Probation search conditions remain in effect
until probation is formally revoked even if the probationer is in custody awaiting revocation
proceedings. (Barkins (1978) 81 Cal.App.3d 30; see also Hunter (2006) 140 Cal.App.4th
1147.) It is not necessary for the probationer to be physically present when a search is
conducted. (Lilienthal (1978) 22 Cal.3d 891, 900.)
1.
Knowledge of the Search Condition
A search of an adult probationer based on a probation search condition requires that officers
have knowledge of the search condition. (Lazalde (2004) 120 Cal.App.4th 858 [residential
search]; Hoeninghaus (2004) 120 Cal.App.4th 1180; Bowers (2004) 117 Cal.App.4th 1261;
Myers (2004) 124 Cal.App.4th 1247 [nonresidential detention and search of an adult
probationer]; and Hester (2004) 119 Cal.App.4th 376 [nonresidential seizure of an adult
subject to a juvenile probation condition].) The same rule applied to a search of a juvenile
probationer. (Jaime P. (2006) 40 Cal.4th 128 [overruling Tyrell J. (1994) 8 Cal.4th 68].)
Unlike search conditions attached to all parolees and all PRCS offenders, adult probation
search conditions are based on the probationer's consent to the search condition in order to
obtain probation. A probationer who consents to a search term relinquishes his Fourth
Amendment rights, "save only his right to object to harassment or searches conducted in an
unreasonable manner." (Bravo (1987) 43 Cal.3d 600, 607.)
In addition to knowledge of the search condition, an officer must also be aware of the scope
of the condition if it appears to be limited. In determining the scope of the search condition,
reviewing courts will use "an objective test, evaluating the terms of the operative search
clause in objective terms, without regard to either the subjective understanding the
probationer might have . . . or the searching officer's subjective intent in conducting the
search." (Romeo (2015) 240 Cal.App.4th 931, 950.)
Currently, the courts are evenly split as to whether discovery of a probation search condition
constitutes an intervening circumstance under Brendlin II sufficient to purge the taint of a
prior error, such as an unlawful detention. (See Brendlin (2008) 45 Cal.4th 262.) In Durant
(2012) 205 Cal.App.4th 57, the Court of Appeal recognized that a probation search condition,
if known to the officer prior to conducting a search, was an intervening circumstance that
"dissipated the taint" of an erroneous traffic stop for an unsignaled lane change. Because the
officer recognized the driver as a probationer with a search condition before he conducted the
patdown search that led to the discovery of an illegal firearm, the evidence was admissible.
In Bates (2013) 222 Cal.App.4th 60, a different court held that a probation search condition is
not sufficient to attenuate an illegal car stop because the enforcement of a probation condition
is discretionary. Nevertheless, Durant underscores the importance of always asking whether
someone is searchable and/or on supervision.
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What if an officer is aware of a valid search condition but mistaken as to what type of
supervision applies? In Hill (2004) 118 Cal.App.4th 1344, the court held that the officer's
belief that the defendant was on parole instead of probation did not invalidate a search
pursuant to a valid search condition.
Establishing Probationer's Status. It is now more important than ever to ask or otherwise
determine whether the individual whose person or property you wish to search is on
searchable probation. Unlike parolees, not all adult probationers have a search condition and
not all search conditions are the same.
If a person tells you that he or she is on searchable probation, you may rely on that statement,
even if it turns out to be incorrect. (Jeremy G. (1998) 65 Cal.App.4th 553, 556; compare
Ferguson (2003) 109 Cal.App.4th 367 [erroneous information in state database did not
provide a valid basis for a probation search when the detainee was not on searchable
probation]; but see Miller (2004) 124 Cal.App.4th 216 [officer may rely on search condition
if valid at the time of the search].) If a probationer lies about his probation status or otherwise
prevents you from determining if he is searchable, he will be precluded from challenging the
search. (Watkins (2009) 170 Cal.App.4th 1403.)
Example:
Officer stopped a Buick for an inoperable taillight. The driver falsely identified
himself as "Marques" Watkins (his brother's name) and said he was on probation. He
did not say if he had a search condition. The officer ran the name, found that
"Marques" had a suspended license, and conducted a "probation search" of the car.
After his arrest for the cocaine base found in the car, Watkins gave his true name. He
was on searchable probation. The appellate court held that Watkins was estopped
from challenging the validity of the probation search. Because Watkins concealed his
identity, he could not profit from it based on the principle "'No one can take advantage
of his own wrong." (Watkins (2009) 170 Cal.App.4th 1403.) (Note that the court
distinguished Myers (2004) 124 Cal.App.4th 1247 because the officer in that case did
not run a records check when Myers claimed he was not on parole or probation.)
Specific Search Conditions. If a search condition is limited--i.e., narcotics, weapons, stolen
property--you are entitled to search in places where the objects might reasonably be located.
Your subjective intent regarding what you may be looking for is completely irrelevant as long
as you search only those areas covered by the search condition. For example, if the search
condition permits a search for narcotics, your search for stolen property may be conducted in
any place where narcotics could be concealed. (Gomez (2005) 130 Cal.App.4th 1008.)
A court can also impose a condition that an adult probationer disclose all passwords to stored
or accessible media sites. The condition could include passwords to any electronic devices,
cell phone, computers, notepads, and social media sites including Facebook, Instagram, and
Mocospace. (Ebertowski (2014) 228 Cal.App.4th 1170.)
2.
Contacting the Probation Officer
Under California case law, you do not need to contact the suspect's probation officer before
conducting a search. (Marcellus L. (1991) 229 Cal.App.3d 134, 141.)
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3.
5.6a
Amount of Suspicion Required
If someone is on searchable probation, you may conduct a search without "reasonable
suspicion" or any other amount of particularized suspicion. (Bravo (1987) 43 Cal.3d 600,
602, 611; Medina (2008) 158 Cal.App.4th 1571, 1577; Brown (1987) 191 Cal.App.3d 761.)
Adult probationers consent to the condition--a waiver of their Fourth Amendment rights-when they choose probation over prison. (Ramos (2004) 34 Cal.4th 494, 506; Miller (2004)
124 Cal.App.4th 216, 221; see Murphy (2005) 37 Cal.4th 490, 493.)
Despite the clear state of the law regarding California probation searches, some commentators
have advised officers that suspicion might be required. They base this on unrelated dictum in
the U.S. Supreme Court decision in Samson (2006) 547 U.S. 843 concerning California
parole searches. Because "the basis for the validity of a probation search is consent, not
reasonableness under a general Fourth Amendment analysis," this viewpoint is unfounded.
(Medina (2008) 158 Cal.App.4th 1571, 1575.)
The only limitations to a valid probation search, of either adults or juveniles, are that (1) you
may not undertake a probation search for purposes of harassment or for "arbitrary and
capricious" reasons, (2) you may not conduct the search in an unreasonable manner, and (3)
you may not exceed the scope of the search condition. (Woods (1999) 21 Cal.4th 668, 681682; Bravo (1987) 43 Cal.3d 600, 605, 610; Tyrell J. (1994) 8 Cal.4th 68, 87; Reed (1994) 23
Cal.App.4th 135, 141.) An arbitrary and capricious probation search is one "unrelated to
rehabilitative, reformative, or legitimate law enforcement purposes," such as a search
motivated by personal animosity. (Anthony S. (1992) 4 Cal.App.4th 1000, 1004.) The
permissible scope of a probation search is defined solely by the language of the search
condition. (Gomez (2005) 130 Cal.App.4th 1008, 1011.)
Example:
It was legal for Ventura police officers to go to the residence of a juvenile gang
member and search for items named in his search condition (stolen property, gang
paraphernalia, etc.) even though they had no specific suspicion of criminal activity or
of a violation of probation. (Anthony S. (1992) 4 Cal.App.4th 1000, 1004.)
Example:
Gomez consented to the search of his residence for weapons or narcotics as a
condition of probation. The officers went to Gomez's residence to search for stolen
antiques. HELD: The search was lawful because Gomez did not have a reasonable
expectation of privacy in the area of the garage where the stolen goods were located,
which was a place where he could have stored narcotics or firearms. (Gomez (2005)
130 Cal.App.4th 1008.)
Furthermore, there is no such thing as a "pretext" probation search. For example, it is lawful
to search a probationer's residence, including areas jointly controlled by his roommate (who is
not on probation), even if your goal is to discover incriminating evidence against the
roommate. (Woods (1999) 21 Cal.4th 668, 671-672.) A search condition also permits a
warrantless entry to arrest the person subject to the search condition. (Lewis (1999) 74
Cal.App.4th 662, 665.) (See discussion and important "Note" regarding arrests in thirdparty residences, Ch. 5-VII-C-3.)
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4.
SEARCH AND SEIZURE - MISCELLANEOUS
California Law vs. Ninth Circuit Law
According to a long line of Ninth Circuit cases, the Fourth Amendment requires a warrantless
probation search to be supported by "reasonable suspicion," whereas California cases permit
a search without any suspicion, provided that its purpose is not to harass the probationer.
(Compare Ooley (9th Cir. 1997) 116 F.3d 370 with Bravo (1987) 43 Cal.3d 600, 602, 611.)
The United States Supreme Court's decision in Knights (2001) 534 U.S. 112 did not resolve
this conflict because the question of whether reasonable suspicion is required under the
Fourth Amendment was not before the Court. (Zichwic (2001) 94 Cal.App.4th 944, 952.)
Deciding the only issue before it, the Court overruled the Ninth Circuit and held that the
official purpose in undertaking a warrantless probation search makes no difference.
The Court's subsequent decision in Samson (2006) 547 U.S. 843 approving a suspicionless
parole search did not address suspicionless probation searches. The Court rested its holding
on California's parole search condition that "severely diminishes" a released prisoner's
reasonable expectation of privacy. Because most probation search conditions are identical to
parole search conditions in their language permitting searches by any law enforcement officer
with or without cause, a probationer subject to a search condition--just like a state parolee-has no greater expectation of privacy for Fourth Amendment purposes than a parolee.
The Ninth Circuit does not agree with California's probation system that allows suspicionless
searches. The court has repeatedly attempted to chip away at our system. The difficulty is
that the structure of the federal probation system involves a limited number of offenders and
is so unlike ours, but the Ninth Circuit repeatedly tries to reshape our system to fit within its
notion of appropriate supervision. This has led to a number of cases arising from federal
prosecutions of California probationers that are inconsistent with California law.
For example, in Lara (9th Cir. 2016) 815 F.3d 605, the Ninth Circuit ruled that a California
probationer's cell phone could not be searched based merely on a general search condition
because Lara's probation was for a violent felony and the general search condition did not
apply to the capacious data in a cell phone. The court's analysis does not comport with wellestablished California law validating probation search conditions based on the offender's
criminal history and the nature of the offense (Lent (1975) 15 Cal.3d 481)--not upon the
determination of a current violent felony. The broad holding in Lara has already been
rejected by one federal district court. (See Aviles (N.D. Cal. 2017) 229 F.Supp.3d 1039; see
also Sandee (2017) 15 Cal.App.5th 294, 304 ["we do not find Lara's analysis to be persuasive
because it does not follow the approach approved by the California Supreme Court for
assessing the constitutional validity of a search conducted pursuant to a probation search
condition."])
Subsequently, in Job, the Ninth Circuit again addressed California probation searches. (Job
(9th Cir. 2017) 871 F.3d 852.) The Ninth Circuit mentioned Lara but did not decide the case
on the basis that the search condition was imposed following conviction for a nonviolent
crime. Consistent with California law, the federal court found that the prosecution could not
rely on a search condition as authority for a warrantless search without first establishing that
the officers were aware of the condition. (See Lazalde (2004) 120 Cal.App.4th 858.)
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5.6c
The discrepancies between the state and federal court decisions on California probation
searches can be problematic but, unless the U.S. Supreme Court provides direct authority
disapproving the California Supreme Court's decision in Bravo, suspicionless searches of
California probationers remain lawful. (Sandee (2017) 15 Cal.App.5th 294, 304 [rejecting
Lara].)
B.
Parole Searches
All California parolees are subject to a search condition. (Pen. Code, § 3067; Cal. Code of
Regs., tit. 15, §§ 2511, 2512; Schmitz (2012) 55 Cal.4th 909, 916; Middleton (2005) 131
Cal.App.4th 732; Lewis (1999) 74 Cal.App.4th 662, 668.) This mandatory search term does
not require that the parolee sign an agreement or consent to the search condition. (Pen. Code,
§ 3067.) Random, warrantless, suspicionless parole searches do not infringe on any
reasonable expectation of privacy, so long as the searches are reasonable in their manner and
execution. (Reyes (1998) 19 Cal.4th 743.)
In Samson (2006) 547 U.S. 843, the Supreme Court validated California's parole search law
and held that suspicionless searches of parolees are not prohibited under the Fourth
Amendment. Parolees do not have a legitimate expectation of privacy under the Fourth
Amendment based on their parolee status and the plain terms of their parole search condition.
California law does not authorize parole searches conducted for the purpose of harassment or
conducted in an unreasonable or oppressive manner. (See Samson (2006) 547 U.S. 843, 856857; Pen. Code, § 3067, subd. (d).) Parole searches may be found to be unreasonable if they
are "arbitrary or capricious," such as searches that are conducted at an unreasonable hour,
unreasonably prolonged, or too frequent or if the motivation for the search is personal
animosity toward the parolee. (Reyes (1998) 19 Cal.4th 743, 753-754; Clower (1993) 16
Cal.App.4th 1737, 1742.)
Example:
Parolee challenged the "reach-in" search for drugs stashed in his underwear as
unreasonable. Officers had observed the parolee waiting in a car parked near someone
trying to open a ground floor window of a hotel in a high-crime area of Vallejo. The
officers pat-searched the parolee and searched his car. After dispatch reported that his
parole was related to a narcotics offense, the officers decided to check inside the
parolee's pants. They conducted the check in the crook of an open patrol car door
with other officers blocking public observation inside the fenced-in parking lot. One
officer removed the parolee's belt, unzipped and lowered his pants about a foot, and
then pulled out the elastic waistband of his underwear to reveal a baseball-sized bag of
heroin. HELD: It was a valid parole search. The court rejected the parolee's claim
that it was an impermissible public "strip search." The court called it a "reach-in"
search and found that it was properly conducted in a manner to safeguard the parolee's
privacy to the extent possible. (Smith (2009) 172 Cal.App.4th 1354.)
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Example:
Parolee, on parole for a drug possession conviction, was driving a van stopped for a
taillight violation. The officers searched the parolee and then searched his residence.
Less than 24 hours later, one of the same officers observed the parolee outside a
convenience store located miles away from the parolee's residence and known for
narcotics activity. This time the officer found rock cocaine in the parolee's waistband.
The same officer had previously contacted the parolee six or seven times in the past.
HELD: The parole search outside the store was constitutional because the record
objectively supported a legitimate law enforcement purpose for the search. (Sardinas
(2009) 170 Cal.App.4th 488.)
It is not necessary that a parolee is present during the search of his property or premises.
(Veronica (1980) 107 Cal.App.3d 906, 910; Byrd (1974) 38 Cal.App.3d 941, 949.) He may,
in fact, be in custody. (Hunter (2006) 140 Cal.App.4th 1147 [in custody on parole hold];
Johnson (1988) 47 Cal.3d 576, 595 [in jail on new crime].) The search condition remains in
effect until either (1) parole is formally revoked in a due process hearing (Hunter (2006) 140
Cal.App.4th 1147) or (2) the parolee is discharged from parole (Willis (2002) 28 Cal.4th 22).
The People must prove, by substantial evidence, that a parolee was still on parole if a
warrantless search is based on the search condition. (Pearl (2009) 172 Cal.App.4th 1280,
1283.)
Example:
While parolee was in custody on a parole violation, officer searched his storage unit in
connection with a residential burglary investigation. Parole had not been revoked at
the time of the search. HELD: The warrantless search was valid. The parole search
condition remained in effect until formal revocation proceedings. (Hunter (2006) 140
Cal.App.4th 1147.)
Example:
Following a report of a high level of telephone and foot traffic in Willis' motel room, a
member of the county narcotics task force found Willis listed in the department
"parole book" as on active parole. The officer submitted the list to a parole agent,
who directed a parole search of the motel room, accompanied the officers, and
participated in the search. After the team entered his room, Willis correctly informed
them that he had been discharged from parole eight months earlier. HELD: The
California Supreme Court suppressed all evidence found in the motel room. The Leon
good faith exception did not apply because the parole agent was "an adjunct to the law
enforcement team" and her erroneous CDCR information could not be relied upon in
good faith. (Willis (2002) 28 Cal.4th 22.)
1.
Knowledge of the Search Condition
To rely on a parole search condition as authority for a search of a parolee's residence, officers
must have prior knowledge of the defendant's parole status. (Sanders (2003) 31 Cal.4th 318,
336.) The Sanders court reasoned that allowing after-acquired knowledge of a resident's
parole status to legitimatize a residential search would promote "unlawful police conduct" in
that police "would be encouraged to engage in facially invalid searches in the hope that at
least one of the occupants would be subject to a search condition." (Sanders (2003) 31
Cal.4th 318, 336.) Sanders has been extended to a Terry stop and frisk of a parolee in a
public park. (Jordan (2004) 121 Cal.App.4th 544.)
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5.6e
For awhile in 2004 and 2005, the defense bar argued that Sanders required knowledge of the
exact terms of a parolee's search condition. Because all parolees released from a California
state facility are subject to the identical search condition, all state parolees are subject to
suspicionless search and seizure. "[A]n officer's knowledge of a parolee's status is equivalent
to knowledge of the applicable search condition." (Schmitz (2012) 55 Cal.4th 909, 922, fn.
13; Middleton (2005) 131 Cal.App.4th 732, 740; see Douglas (2015) 240 Cal.App.4th 855
[identical rule for PRCS offenders].) The same search condition applies to all state
parolees regardless of when an offense was committed: for offenses committed prior to
January 1, 1997, the search condition was imposed pursuant to Title 15, §§ 2511 and 2512 of
the California Code of Regulations; for offenses committed after January 1, 1997, the
condition is imposed pursuant to Penal Code section 3067. (Middleton (2005) 131
Cal.App.4th 732, 739-740; see Samson (2006) 547 U.S. 843, 852, fn. 3.) (Note that SB 1023,
effective June 27, 2012, replaced parole agreements with notice requirements and eliminated
institutional consequences for failure to sign parole terms and conditions.)
Further, the People are not required to prove either the existence of, or the officer's awareness
of, a signed parole agreement. (Solorzano (2007) 153 Cal.App.4th 1026, 1030-1032.)
Additionally, the administrative measures in Penal Code section 3000.03 (effective 1/25/10)
enacted to address state prison overcrowding in no way impact a parolee's searchable status.
Finally, if the parolee's conduct prevents an officer from ascertaining parole status, such as
providing a false name, he should be precluded from challenging a search that complies with
his search condition. (See Watkins (2009) 170 Cal.App.4th 1403 [concerning probationers].)
2.
California Law vs. Federal Law
The federal Ninth Circuit Court of Appeals repeatedly had attempted to override California
law and impose its own standard of suspicion--reasonable suspicion--on searches of
California parolees. (See Crawford (9th Cir. 2003) 323 F.3d 700 [decertified]; Crawford (9th
Cir. 2004) 372 F.3d 1048 (en banc); Moreno v. Baca (9th Cir. 2005) 400 F.3d 1152 [opinion
withdrawn]; Moreno v. Baca (9th Cir. 2005) 431 F.3d 633.)
The Supreme Court decision in Samson (2006) 547 U.S. 843 laid to rest the conflict between
the federal and California courts' interpretation of the Fourth Amendment. (See Lopez (9th
Cir. 2007) 474 F.3d 1208, 1214, approving a residential parole search under the California
parole search provisions.) The Ninth Circuit has even applied Samson to a warrantless,
suspicionless search of a federal releasee. (Betts (9th Cir. 2007) 511 F.3d 872, 876.)
Yet still a different panel of the Ninth Circuit has attempted in dicta to discredit California
parole searches on a new ground. In Caseres (9th Cir. 2008) 533 F.3d 1064, the court implied
that officers must know the date of a parolee's offense and know that the parolee had a search
condition. The court misinterpreted Penal Code section 3067, and it completely failed to
acknowledge that Title 15, §§ 2511 and 2512 imposed a search condition on all parolees
irrespective of the date the offense was committed. (See Middleton (2005) 131 Cal.App.4th
732, 739-740; Reyes (1998) 19 Cal.4th 743, 763 ["the search condition is a blanket search
condition, imposed indiscriminately on all parolees"].)
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The statements in Caseres are erroneous dicta that do not impact or control California parole
searches. Although the federal courts can mandate a set of distinct controls and requirements
for its own federal supervised releasees, they cannot dictate the terms of California parole
release.
C.
Residences/"Possessions"
1.
Knock and Notice
With regard to searching a parolee's or probationer's residence, the "knock and notice"
requirements apply, although they may be excused entirely or only substantially complied
with, depending on the circumstances. (See Ch. 3; Murphy (2005) 37 Cal.4th 490, 496;
Urziceanu (2005) 132 Cal.App.3d 747; Britton (1984) 156 Cal.App.3d 689, 698; LaJocies
(1981) 119 Cal.App.3d 947, 952.) Additionally, the "exclusionary rule" should not be applied
to evidence obtained in a search of a parolee or a probationer with a search condition if the
court determines that the search condition provided the lawful authority for the search or
seizure similar to the authority provided in a warrant and the only irregularity was a
knock/notice violation. (See generally Hudson (2006) 547 U.S. 586, discussed at Ch. 3-V.)
2.
Probable Cause to Arrest
If something you see or find during such a search provides probable cause to arrest, you may
make the arrest inside the residence without an arrest warrant. This is so because the purpose
behind an arrest warrant is to provide you with judicial authorization for entering the suspect's
home. But with a "search condition," you already have a legal justification for entering the
home, so no warrant is necessary. (Palmquist (1981) 123 Cal.App.3d 1, 15.)
3.
Entering Residence to Arrest
Because you have the power to enter the residence of a person on searchable supervision
(parolee, PRCS releasee, probationer with a search condition, § 1170(h)(5)(B) mandatory
supervision offender with a search condition) and conduct a search--even if the person is not
at home--at least one court has ruled that you may also enter, on the strength of the search
condition, for the purpose of making an arrest, assuming, of course, that you have probable
cause to arrest: "There is no violation of either Ramey or Payton if officers entitled to enter a
home to search enter [instead] to make an arrest." (Lewis (1999) 74 Cal.App.4th 662, 665.)
Note:
The Supreme Court held in Steagald (1981) 451 U.S. 204 that a search warrant
is required in order to enter a third person's residence to arrest a suspect who is
visiting there, even though you have an arrest warrant for the suspect himself.
Although there is no case directly on point, Steagald would most likely apply
to entering a third person's residence to arrest a probationer, parolee, or
PRCS subject who is inside, temporarily visiting. It is the third person's
privacy that is at issue in these situations. Even though the offender subject to
the search clause could not challenge the entry (no standing), you could be
exposing yourself to potential civil rights liability for an illegal entry in an
action by the third party.
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5.6g
Protective Sweeps and Detentions
With "specific and articulable facts" justifying a cursory inspection of the residence, officers
may conduct a Buie protective sweep of the entire residence, including a nonprobationer's
quarters. Courts will consider (1) the type of criminal conduct underlying an arrest or search,
(2) the presence of ongoing criminal activity in the residence, (3) the potential presence of
firearms, and (4) the potential presence of others in the home. (Ledesma (2003) 106
Cal.App.4th 857.)
Example:
Police went to a probationer's residence to conduct a probation search. Cotenant, who
appeared to be under the influence of narcotics, let the officers into the residence and
showed them to the absent probationer's bedroom. Prior to searching that room, they
conducted a brief security check of the nonprobationer's bedroom for officer safety.
HELD: Although a protective sweep is not automatically justified, a Buie security
sweep may properly precede a probation search. The officers' safety concerns were
increased by the probable duration of the search on the "adversary's turf" and the
inherent distraction of undertaking a careful examination into the "nooks and
crannies" of the probationer's bedroom. (Ledesma (2003) 106 Cal.App.4th 857, 865.)
Further, officers may briefly detain others present in a residence during a probation search to
ascertain identity, relationship to the probationer, and relationship to the probationer's
residence. (Rios (2011) 193 Cal.App.4th 584, 595 [relying on the reasoning in Summers
(1981) 452 U.S. 692, 705].) The detention is justified by the same safety concerns justifying
detentions during the service of a warrant recognized in Muehler v. Mena (2005) 544 U.S. 93
and Rettele (2007) 550 U.S. 609. (Sanchez (9th Cir. 2009) 574 F.3d. 1169, 1172-1175.)
Example:
5.
Probation officer conducting home visit/search of a juvenile probationer, whose
conditions included an order not to associate with gang members, started to question
Rios--who had visible gang-related tattoos on his face and hand--about his identity
and reasons for being in the residence. HELD: Even assuming that Rios was detained
when the officers entered the residence, the detention was lawful so that officers could
establish his identity and connection with the probationer and the residence. It was
also lawful for the probation officer to conduct a patdown search of Rios, who was a
probable gang member, overly dressed for the weather, and belligerent in his refusal to
answer questions and his refusal to stop evasive movements. (Rios (2011) 193
Cal.App.4th 584 [the court noted that the probation officer was acting within the scope
of his duties under Pen. Code, § 830.5, subd. (a)(1)].)
Joint Occupants
People who live with offenders subject to search cannot "reasonably expect privacy" in shared
areas of the residence. (Pleasant (2004) 123 Cal.App.4th 194, 197.) Thus, an objection from
the cotenant (roommate, spouse, etc.) cannot prevent you from conducting a search of the
shared areas. However, you cannot search areas that are occupied or controlled exclusively
by the cotenant. You must limit your search to those areas exclusively occupied by the
probationer/parolee/PRCS/mandatory supervision offenders or those areas that are jointly
occupied. The reasonable suspicion standard is used to determine whether a particular object
is within the scope of a search condition. (Boyd (1990) 224 Cal.App.3d 736, 750.)
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Example:
Defendant's mother, who was on probation with a search condition, had a key to her
son's locked room in which officers found a rifle under the bed. HELD: Because the
probationer had access to the key to the room where the gun was found, the officers
could enter and search that room under the authority of the probationer's Fourth
Amendment waiver. (Pleasant (2004) 123 Cal.App.4th 194, 198.)
A search condition will validate even a search for evidence associated with a nonprobationer
in a jointly occupied residence where the search is limited to the areas under the probationer's
exclusive or joint control. (Woods (1999) 21 Cal.4th 668, 671-672.) Officers must have
prior knowledge of the co-occupant's search condition or parole/PRCS status prior to
conducting a search. (Robles (2000) 23 Cal.4th 789; Sanders (2003) 31 Cal.4th 318.)
Example:
Evidence obtained against Robles during a warrantless search of his garage was
suppressed and inadmissible despite the fact that, unknown to the searching officers,
Robles' brother, who lived at the same residence, was on searchable probation. The
officers were not aware of the brother's probationary status at the time they conducted
the search. (Robles (2000) 23 Cal.4th 789.)
Example:
Officers were investigating a domestic violence call in an apartment shared by
Sanders (victim) and McDaniel (suspect). Sanders had a recent cut on her cheek, and
McDaniel was observed hiding something metal behind the sofa cushion; both became
verbally and physically abusive toward the officers. A protective sweep of the
apartment followed, and a work boot full of rock cocaine was observed in plain view
in an open closet. The officers learned of McDaniel's parole status after the protective
sweep, which the Court of Appeal held exceeded its lawful scope. HELD:
McDaniel's parole search condition could not be relied upon to validate the
warrantless search. (Sanders (2003) 31 Cal.4th 318.)
Robles and Sanders reflect the California Supreme Court's concern that police might conduct
"illegal" searches of jointly occupied premises, hoping to validate them after the fact by
discovering that one of the occupants was on searchable probation or parole. Thus, whenever
possible (and it was not possible or advisable inside Sanders' residence before the protective
sweep), you should check the probationary, parole, or supervision status of all suspects and
any joint occupants before conducting the search.
Note:
One appellate court suppressed evidence found in a garage residence occupied
by a guest of two probationers with search conditions because the record failed
to disclose the scope of the probationers' search conditions. For officers, this
decision could mean more questions at the § 1538.5 hearing regarding
probationers' actual probation search terms. (See Romeo (2015) 240
Cal.App.4th 931.)
As to possessions in a joint area of the residence, if it appears that the probationer has control
over or access to an item, it is subject to search. (Ermi (2013) 216 Cal.App.4th 277.)
Non-Association Condition. If a probationer has a "non-association" condition, it is proper
for you to briefly detain those who are present or departing to check their status. (Matelski
(2000) 82 Cal.App.4th 837, 846-853.)
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5.6i
What Establishes a "Residence"?
Before entering a residence to conduct a search, you must have a "reasonable belief" that the
probationer or parolee resides there. A "reasonable belief" is less than "probable cause to
believe." (Downey (2011) 198 Cal.App.4th 652, 662.)
Example:
After searching various databases and calling different agencies, officers found
different addresses for a probationer subject to a search condition. The most recent
utility bills and phone records listed the same residence. Defendant, who was not the
probationer, was living at the residence and was arrested for being a felon in
possession of a firearm found in a search of the kitchen. HELD: The probation search
was lawful based on the officers' reasonable belief that the probationer was still living
at the residence at the time of the search. (Downey (2011) 198 Cal.App.4th 652.)
Note that the Ninth Circuit has ruled that a parole search must be supported by "probable
cause to believe that the parolee is a resident of the house to be searched." (Motley (9th Cir.
2005) 432 F.3d 1072, 1080; Howard (9th Cir. 2006) 447 F.3d 1257, 1262.) Probable cause
can be based on the parolee's reported address. (Motley (9th Cir. 2005) 432 F.3d 1072, 1082;
see also Franklin (9th Cir. 2010) 603 F.3d 652 [motel room rented for a night].)
7.
Searching Objects and "Possessions"
Unless the person is in a vehicle at the time of the contact, you need some basis for thinking a
specific item belongs to or is under the control of the person subject to the search condition
to search it. This basis may be supplied by the surrounding circumstances. (Britton (1984)
156 Cal.App.3d 689, 700-703; Baker (2008) 164 Cal.App.4th 1152, 1159.) Searching
officers are entitled to rely on appearances and "are not required either to inquire about the
ownership of or access rights to each item on the premises or to believe" the supervised
offenders' statements on this topic. (Carreon (2016) 248 Cal.App.4th 866.)
Example:
Officers conducted a parole search of a small trailer after removing the (male) parolee
and (female) defendant to the main residence a few feet away. One officer picked up
a brown leather "gender neutral" clutch-purse on top of the only bed in the trailer,
which appeared to have been recently used by both occupants. He opened the
container, which was a type used to keep drugs, and discovered makeup, other
"female" items, and methamphetamine. HELD: The officer had reasonable suspicion
that it was owned, controlled, or possessed by the parolee. The officer was not
required to inquire about ownership. (Boyd (1990) 224 Cal.App.3d 736, 745-751.)
Example:
Officers searched a male probationer's residence pursuant to a valid search condition.
In the bedroom the probationer shared with Smith, a narcotics dog responded to a
woman's purse on their bed. HELD: The search of the purse was lawful. The
"question was not whether the purse was female or gender-neutral; the critical issue
was whether the officers reasonably believed the item was one under [probationer's]
control or one to which he at least had access." Once it was determined that the
bedroom was linked to a criminal enterprise, the officers were reasonable in believing
that the purse was another potential repository for narcotics, even if the purse was not
jointly owned by the probationer. (Smith (2002) 95 Cal.App.4th 912.)
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Example:
Police conducting a probation search looked in a woman's purse found in the bedroom
that male probationer shared with his girlfriend. Girlfriend said it was her purse
before the officer searched it. HELD: Because it appeared that the probationer had
access to or control over the purse, it was searchable. "To rule otherwise would
enable a probationer to flout a probation search condition by hiding drugs in a
cohabitant's purse or any other hiding place associated with the opposite gender."
(Ermi (2013) 216 Cal.App.4th 277, 281-282; but see Carreon (2016) 248 Cal.App.4th
866 [officers could not search the purse or dresser of a woman staying in probationer's
converted garage because the objective facts indicated that it was not a shared or
common area].)
If property is located in the interior of a car when a parolee is a passenger in the vehicle, a
search of the passenger compartment--including containers--is permitted. (Schmitz (2012) 55
Cal.4th 909.) The same rule applies when the passenger is a probationer with a search
condition. (Cervantes (2017) 11 Cal.App.5th 860.) You are not required to articulate facts
showing that the parolee or probationer "actually placed personal items or discarded
contraband in the open areas of the passenger compartment." (Schmitz (2012) 55 Cal.4th
909, 929-930; Cervantes (2017) 11 Cal.App.5th 860, 871.)
Example:
Officer searched the passenger compartment of defendant's car--including a chips bag
and a pair of shoes in the rear seat area--after learning that the front passenger was on
parole. He found syringes in the chips bag and methamphetamine in the shoes.
HELD: The front passenger's parole status justified the search. A chips bag is not an
"inherently private repository for personal items" and has no distinct characteristics
that would identify it as belonging to any particular person. It was objectively
reasonable for the officer to determine that the parolee was able to reach back and hide
contraband in the chips bags or in the shoes. (Schmitz (2012) 55 Cal.4th 909.)
Although Schmitz and Cervantes address parolees and searchable probationers riding as
passengers in a car, the holdings should apply equally to PRCS offenders because they are
subject to automatic search conditions identical to parolees. (See Pen. Code, § 3465.)
Note:
D.
The Schmitz Court distinguished a prior decision restricting the search of
items found in a car. In Baker (2008) 164 Cal.App.4th 1152, 1160, the
appellate court held that an officer could not search a "female" purse located
on the floorboard in front of the passenger seat solely on the basis of the male
driver's parole search condition because nothing overcame "the obvious
presumption that the purse belonged to the sole female occupant of the vehicle
who was not subject to a parole-condition search."
Pre-Trial "O.R." Release Searches
The California Supreme Court has ruled that accused felons who are unable to post bail may
be required to submit to drug testing and warrantless searches as a condition of pretrial release
on their own recognizance ("O.R."). Such conditions are "reasonable" and do not violate a
suspect's presumption of innocence or the principles of equal protection. (York (1995) 9
Cal.4th 1133; see Pen. Code, § 1318, subd. (a)(2).)
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Therefore, if you discover that the person you contacted or detained is on O.R. release
pending trial and is subject to these search conditions, you would be entitled to conduct a
warrantless search, without any particularized suspicion, as long as (1) you stay within the
authorized scope (i.e., the area and the object/purpose) of that condition, and (2) you conduct
the search for a legitimate law enforcement purpose rather than for harassment (i.e., out of
personal dislike for the individual). (See Clower (1993) 16 Cal.App.4th 1737, 1742.)
Note:
E.
The Ninth Circuit has held that pretrial O.R. release searches require probable
cause. (Scott (9th Cir. 2006) 450 F.3d 863.)
Global Positioning System Monitoring
Global positioning system monitoring is expressly authorized for adult probationers (Pen.
Code, § 1210.7) and parolees (Pen. Code, § 3010). (See also Pen. Code, § 1202.8 regarding
registered sex offenders.) It also qualifies as a valid probation condition for a juvenile
probationer. (In re R.V. (2009) 171 Cal.App.4th 239, 248-249.)
F.
Community Supervision--PRCS and Mandatory Supervision
Starting on October 1, 2011, two new classifications of out-of-custody felons subject to
supervision were released into local communities. The differences between these populations
and traditional parolees and probationers are described below.
You now want to establish if someone you contact in the field is on postrelease community
supervision (PRCS) or subject to Penal Code § 1170(h)(5) mandatory supervision. Instead of
just asking contacts if they are on parole or probation, you may want to change your question
to: "Are you on parole, probation, or supervision?" This "supervised" status may inform you
of search conditions and the degree of care needed during a contact.
1.
Postrelease Community Supervision (PRCS)
The Postrelease Community Supervision Act of 2011 is codified in Penal Code § 3450, et
seq. The act shifts supervision of offenders released from state prison from CDCR to local
county probation departments. After release, PRCS offenders are not in CDCR custody.
Although county probation officers monitor PRCS offenders, an offender on PRCS is not on
probation. (Jones (2014) 231 Cal.App.4th 1257.)
To qualify for PRCS, the offender must be classified as N3 or "Non/Non/Non"--meaning
prisoners whose current offenses are non-violent, non-serious, and non-PC § 290.
CDCR has a statutory obligation to electronically submit information regarding each
offender's PRCS status and supervising county to the California Department of Justice for
inclusion in the Supervised Release File (SRF) in C.L.E.T.S. (Pen. Code, § 3003, subd. (l).)
An SRF inquiry provides the date that the offender was released into PRCS and the county
responsible for supervision.
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PRCS offenders are subject to the same mandatory search and seizure clause as parolees.
Specifically, Penal Code section 3465 provides: Every person placed on postrelease
community supervision, and his or her residence and possessions, shall be subject to search or
seizure at any time of the day or night, with or without a warrant, by an agent of the
supervising county agency or by a peace officer. Therefore, just as with parolees, PRCS
status, alone, informs officers that the person is searchable. (Douglas (2015) 240 Cal.App.4th
855.) As with a parolee, officers must have an "objectively reasonable belief" that the
offender is on PRCS at the time of a search or seizure. (Douglas (2015) 240 Cal.App.4th
855.)
Example:
Based on officer's familiarity with defendant's prior arrest on a firearms offense, his
knowledge that defendant had been to prison, and his presumed knowledge of the law
pertaining to gun offenses, related punishments, and the usual length of PRCS, it was
reasonable for the officer to make a rough calculation that defendant was still on
PRCS when he detained and searched him. (Douglas (2015) 240 Cal.App.4th 855,
870.)
It is important to note that Penal Code section 3455, subdivision (b)(1)--recodified in SB
1023 (2012)--provides officers with express authority to arrest someone for a PRCS violation.
That section provides:
"At any time during the period of postrelease community supervision, if any peace officer has
probable cause to believe a person subject to postrelease community supervision is violating
any term or condition of his or her release, the officer may, without a warrant or other
process, arrest the person and bring him or her before the supervising county agency . . . ."
(Pen. Code, § 3455, subd. (b)(1).)
The specific terms and conditions are listed in Penal Code section 3453 and include the
conditions that PRCS offenders obey all laws (subd. (b)) and report to the Probation
Department within two days of release from CDCR custody (subd. (c)) and, subsequently, as
directed by Probation (subd. (e)). An offender remains on PRCS until officially discharged.
(Young (2016) 247 Cal.App.4th 972.)
2.
Penal Code § 1170(h)(5) Custody/Mandatory Supervision
AB 109 also provides for sentences to be served in local jails for qualifying felony offenders.
Pursuant to Penal Code section 1170, subdivision (h)(5), offenders will be sentenced to
county jail under one of two provisions. Starting in 2015, the default sentence is a "split
term" under section 1170, subdivision (h)(5)(B), which provides that the concluding portion
of the sentence is served out of custody on mandatory supervision by the county probation
department. A court can, in the interests of justice, determine that a split term is not
appropriate in a given case and impose a straight term of jail time. For all split terms, the
sentencing judge will determine how to split the term and the custody/mandatory supervision
ratio is up to the judge's discretion. Offenders are not placed on parole following either a
straight term or a jail term followed by mandatory supervision.
What the 2015 amendments mean for officers is that there will be a dramatic increase in the
number of offenders on mandatory supervision and in the community.
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Mandatory supervision offenders can be, and most often are, subject to a search condition.
The condition is imposed by the superior court at the time of Penal Code section 1170(h)(5)
sentencing. A mandatory supervision search term allows for suspicionless searches, subject
to the standard prohibition that they cannot be conducted for arbitrary or capricious reasons or
conducted for the purpose of harassment. (See Cervantes (9th Cir. 2017) 859 F.3d 1175.)
Officers can access mandatory supervision search terms through the Supervised Release File
(SRF) in the same way that probation search terms and PRCS and parole status are obtained.
The supervising county is also indicated in the SRF data.
Also, for the portion of custody that is supposed to include incarceration prior to any
mandatory supervision, the sheriff has the ability to release the offenders to alternative forms
of custody in addition to electronic monitoring. (Pen. Code, § 1203.016.)
Note:
3.
Starting in 2015, an "agency that has knowledge that the subject in a criminal
investigation is a participant in an electronic monitoring program shall make
reasonable efforts to notify the supervising agency prior to serving a warrant or
taking any law enforcement action against a participant in an electronic
monitoring program." (Pen. Code, § 1203.016, subd. (i).)
Pretrial Electronic Monitoring
Penal Code section 1203.018 allows for electronic monitoring of pretrial inmates after 30
days on misdemeanor charges, after 60 days for felonies, or based on a determination by the
sheriff "that the inmate’s participation would be consistent with public safety."
As with post-conviction EMS participants, starting in 2015, for persons awaiting trial, an
"agency that has knowledge that the subject in a criminal investigation is a participant in an
electronic monitoring program shall make reasonable efforts to notify the supervising agency
prior to serving a warrant or taking any law enforcement action against a participant in an
electronic monitoring program." (Pen. Code, § 1203.018, subd. (n).)
G.
Arrest of Supervised Offenders
The statutory grounds for the arrest of a supervised offender and the issuance of a warrant for
the rearrest of a supervised offender are set forth in Penal Code section 1203.2, subdivision
(a):
"At any time during the period of supervision of a person (1) released on probation under the
care of a probation officer pursuant to this chapter, (2) released on conditional sentence or
summary probation not under the care of a probation officer, (3) placed on mandatory
supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170,
(4) subject to revocation of postrelease community supervision pursuant to Section 3455, or
(5) subject to revocation of parole supervision pursuant to Section 3000.08, if any probation
officer, parole officer, or peace officer has probable cause to believe that the supervised
person is violating any term or condition of his or her supervision, the officer may, without
warrant or other process and at any time until the final disposition of the case, rearrest the
supervised person and bring him or her before the court or the court may, in its discretion,
issue a warrant for his or her rearrest. . . ."
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Unlike a traditional arrest warrant, an officer is not required to provide a sworn statement in
support of a §1203.2(a) warrant. All that is required for an arrest of a supervised releasee, either
with or without a warrant, is probable cause to believe that the releasee has violated any term of
condition of supervision. (See Woodall (2013) 216 Cal.App.4th 1221 [arrest of a probationer].)
H.
Warrantless DUI Blood Draws
In 2013, the U.S. Supreme Court changed the requirements for obtaining warrantless blood
samples in DUI investigations when it decided McNeely (2013) 569 U.S. 141. The decision
invalidated the 47-year practice under Schmerber allowing warrantless blood draws based on the
exigent circumstance that blood alcohol metabolizes, which results in the destruction of evidence.
Prosecutors throughout California litigated the extent to which McNeely changed what was the
common and lawful practice in the state. One argument presented in various counties was that
suspects with a search condition could undergo a blood draw without a warrant because the search
fell within the scope of a general search condition.
This argument was validated in Jones (2014) 231 Cal.App.4th 1257. Jones was a DUI suspect on
PRCS and supervised by Solano County Probation. After he was arrested for the DUI, he refused
to provide a breath sample and the arresting officers obtained a warrantless blood sample. The
appellate court upheld the nonconsensual blood draw. It found that Jones's PRCS search condition
authorized the blood draw without the necessity of a warrant and held that a warrantless blood
draw is within the scope of a search condition of an offender on either PRCS, parole, or
searchable probation. It was sufficient that the officers were aware of Jones's PRCS status
because PRCS, like parole, has a mandatory search condition. (Pen. Code, § 3453, subd. (f).) A
probationer with a search condition would also be subject to a warrantless blood draw following a
valid DUI arrest if officers were aware of the search condition prior to the warrantless search.
The court's rationale was that offenders subject to a search condition do not have a reasonable
expectation of privacy with regard to a routine blood draw performed in a medically approved
manner after a DUI arrest. It is important to keep in mind that the reason a blood test is required
is because the DUI arrestee refused to provide a breath sample. "The purpose of a search
condition is to deter the commission of crimes and to protect the public," and that purpose is
served by the collection of a blood sample from a searchable DUI arrestee. (Jones (2014) 231
Cal.App.4th 1257, 1269.)
The court did not address whether the same rationale would apply to offenders on Penal Code
section 1170(h)(5) mandatory supervision. Jones should apply because a mandatory supervision
offender subject to a search condition also would not have a reasonable expectation of privacy
with regard to a blood draw following a DUI arrest. Again, as with probationers, the officer
would have to be aware of the search condition to rely on it to justify a warrantless blood draw.
I.
Electronic Device Search Conditions
In September 2016, the California Electronic Communications Privacy Act (CalECPA) was
amended to specifically allow warrantless searches of electronic devices seized from certain
supervised offenders and pretrial releasees. (Pen. Code, § 1546.1, subd. (c).) For state parolees
and PRCS offenders, electronic devices are searchable if the supervised offender is an authorized
possessor of the device. (Pen. Code, § 1546.1, subd. (c)(9).)
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For probationers, Penal Code § 1170.5(h)(5) mandatory supervision offenders, and persons on
pretrial release, a warrantless search of their electronic devices is permissible if they are an
authorized possessor of the device and they are subject to a clear and unambiguous search
condition with regard to electronic devices. (Pen. Code, § 1546.1, subd. (c)(10).)
Also, searches of cell phones pursuant to a general probation search condition conducted prior
to the CalECPA are valid because reasonable officers would have understood that a cell
phone was the type of personal property subject to search. The Supreme Court decision in
Riley (2014) 134 S.Ct. 2473 did not impact whether a cell phone could be searched based on
a probationer's advance consent and "nothing in Riley suggests that cell phones should not be
understood as a type of personal property." (Sandee (2017) 15 Cal.App.5th 294, 302, fn. 5.)
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VIII.
JAIL/PRISON
A.
In General
5.7
Federal law, under the Fourth Amendment, requires that the actions of all institutional
authorities be "reasonable." However, "reasonableness" is interpreted quite broadly,
providing correctional authorities considerable latitude. (Rutherford (1984) 468 U.S. 576;
Wolfish (1979) 441 U.S. 520, 539.)
For example, although an inmate certainly does not lose all of his civil rights upon being
incarcerated (Thornburgh (1989) 490 U.S. 401, 407), a prisoner has no reasonable expectation
of privacy in his prison cell. (Hudson (1984) 468 U.S. 517, 526; Davis (2005) 36 Cal.4th
510, 527 [Hudson applied to pretrial detainees].) Federal authorities have virtually no
restrictions on eavesdropping or recording conversations in a prison, jail, or police station.
(Lanza (1962) 370 U.S. 139; Davis (2005) 36 Cal.4th 510, 527; Riel (2000) 22 Cal.4th 1153,
1183-1184; Zepeda (2001) 87 Cal.App.4th 1183, 1193; Ahmad A. (1989) 215 Cal.App.3d
528; see also Sacramento County (1996) 51 Cal.App.4th 1468, 1482, which upheld the
videotaping of a jail release office used mostly by jail employees.) California law now
permits law enforcement officers to monitor and record unprivileged communications
between inmates and their "non-attorney" visitors. (Loyd (2002) 27 Cal.4th 997, 1010; see
also Plyler (1993) 18 Cal.App.4th 535, 543-544; Donaldson (1983) 35 Cal.3d 24, 33; Jardine
(1981) 116 Cal.App.3d 907, 914; Riel (2000) 22 Cal.4th 1153, 1183-1184; Zepeda (2001) 87
Cal.App.4th 1183, 1193-1194.)
With regard to examining and/or limiting an inmate's incoming or outgoing mail, including
e-mail, institutions likewise have considerable latitude, given their significant and legitimate
need for prison security. (Collins (2001) 86 Cal.App.4th 1176; McCaslin (1986) 178
Cal.App.3d 1.)
As to searches of the inmate's person, the Supreme Court has ruled that visual body cavity
searches of jail inmates who are in the general population and have contact with other
detainees do not violate the Fourth Amendment regardless of the nature of the crime for
which they are arrested. (Florence (2012) 566 U.S. 318.) The Court reasoned that the visual
searches promoted a legitimate interest in ensuring that jail security is not threatened by what
new detainees could carry in or on their bodies. It is important to note that the Court's
approval of intake strip searches in Florence does not apply to detainees who are being held
without assignment into the general jail population and without substantial contact with other
detainees.
Note:
It is also important to understand that the holding in Florence does not replace
California's statutory requirements under Penal Code section 4030 discussed
below in Sec. Ch-5-VII-C.
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Example:
Florence was stopped for a traffic violation and arrested on an outstanding bench
warrant (which had been cleared but erroneously remained in the statewide computer
database). Before being admitted into the general jail population, he was processed at
the jail and subjected to a strip search that did not involve any touching but did
include a close visual body inspection that required him to lift his genitals and squat
and cough while naked. Florence sought § 1983 damages, contending that his arrest
on a minor offense could not be grounds for a jail strip search. HELD: The close
visual strip search did not violate the Fourth Amendment. It was Florence's admission
to the general jail population and his close contact with other detainees--not his arrest
on the minor offense--that justified the correctional facility's need to maintain a safe
jail environment. (Florence (2012) 566 U.S. 318; see also Collins (2004) 115
Cal.App.4th 137, 154-155; Bull (9th Cir. 2010) 595 F.3d 964.)
Example:
Having received information that marijuana would be smuggled into the county honor
farm that day, officers conducted a full body and cavity search of 40 inmates as they
returned from work furlough and found four balloons of contraband in the rectum of
one inmate. The search was upheld as reasonable because there were valid reasons for
it and it was conducted quickly by a licensed physician using acceptable medical
procedures. (West (1985) 170 Cal.App.3d 326.)
B.
Booking Searches
You may search the person and inventory the effects of a prisoner who is to be booked into
jail to prevent the introduction of contraband and weapons and to account for and safeguard
the personal property (money, valuables, etc.) taken from the prisoner. (Hamilton (1988) 46
Cal.3d 123; Harris (1980) 105 Cal.App.3d 204; Pen. Code, § 1412; Gov. Code, § 26640.)
A booking search properly includes a full search of the person and the seizure and
examination of anything on him, such as clothing, items in his pockets, and even closed
containers, under both federal and California law. (LaFayette (1983) 462 U.S. 640; Miranda
(1987) 44 Cal.3d 57.)
Example:
It was permissible, as part of the booking search, to remove an envelope from
arrestee's pants pocket, open it, and find an incriminating letter. (Miranda (1987) 44
Cal.3d 57.)
Example:
It was permissible, when an inmate was transferred from one city's jail to another
city's jail, for officers of the second city to examine the inmate's personal property as
part of a second booking search. (Hovey (1988) 44 Cal.3d 543; Hamilton (1988) 46
Cal.3d 123.)
Example:
Defendant's wallet and personal effects had been taken from him and placed in a
manila envelope at booking. It was within the permissible scope of a booking search
to examine a list of telephone numbers and names on a card in defendant's wallet
during questioning several hours after he was arrested. (Clark (1992) 3 Cal.4th 41,
143.)
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5.8a
As long as the booking search is undertaken for legitimate booking purposes, it will be
upheld, even if the officer is also interested in investigating the items revealed. Only if the
booking search is a pretext, carried out in bad faith, for the sole purpose of investigating, will
it be struck down as invalid. (Dominguez (1988) 201 Cal.App.3d 345, 351-352.)
Example:
1.
A satchel, which a narcotics-sniffing dog had alerted to, was brought to the police
station along with the arrestee who had possessed it. It was "inventoried" in
compliance with departmental policy regarding any piece of possible evidence
brought to the station. However, the searching officer admitted he was also hoping to
find contraband. HELD: The inventory search was good. The presence of a second
motive (investigation) did not negate the valid inventory. (Bowhay (9th Cir. 1993)
992 F.2d 229, 231.)
Strip and Body Cavity Searches
Penal Code section 4030 places restrictions on searching persons arrested and held for minor
offenses and on transferring such persons into the general jail population.
Section 4030 applies only (1) to adults arrested and held for infraction or misdemeanor
offenses, and (2) to juveniles detained prior to a detention hearing under Welfare and
Institutions Code sections 300, 601, or 602 on allegations that the juvenile committed a
misdemeanor or infraction offense.
You may conduct patdown searches, metal detector searches, body scanner searches, and
thorough-clothing searches for concealed weapons and contraband of these persons before
transfer to a booking cell. (Pen. Code, § 4030, subd. (d)(1).) (Agencies shall endeavor to
avoid knowingly using a body scanner to scan a woman who is pregnant.) You may not
conduct a physical body cavity search without a search warrant.
Section 4030 specifically permits a strip search or visual body cavity search if the
misdemeanor or infraction involved weapons, controlled substances, or violence. If the
misdemeanor or infraction did not involve weapons, controlled substances, or violence, you
may not conduct a strip search or visual body cavity search unless:
-
you have reasonable suspicion that he is concealing a weapon or contraband and that
the search will reveal it; and
-
you have prior written authorization of the supervising officer on duty and the
authorization includes the specific facts on which your reasonable suspicion is based.
A "strip search" is any search that requires a person to remove or arrange some or all of his or
her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or
genitalia. A visual body cavity search is a visual inspection of the vagina or rectal cavity. A
physical body cavity search is a physical intrusion into a body cavity to discover concealed
objects. (Pen. Code, § 4030, subd. (c).)
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Section 4030 requires that all strip and body cavity searches be conducted in an area of
privacy and sets forth certain record-keeping requirements. If you conduct a strip or body
cavity search, or if you are within sight of the arrestee during the search, you must be of the
same sex as the arrestee. (Exceptions are physicians and licensed medical personnel.) If you
conduct a strip search or visual body cavity search, you may not touch the person. It is a
misdemeanor to conduct a strip, visual, or physical body cavity search in violation of section
4030.
Note:
Although the Supreme Court ruled in Florence (2012) 566 U.S. 318 that a
visual strip search of detainees entering the general jail population having
substantial contact with other inmates or detainees does not violate the Fourth
Amendment, Penal Code section 4030 has not been repealed and remains in
effect. Under Florence, a § 1983 claim will not stand and evidence obtained in
a strip search that complies with that decision will not be excluded at trial but
the decision does not address a failure to comply with state law protocols.
If the misdemeanor or infraction did not involve weapons, contraband, or violence, you may
not place such a person into the general jail population unless (1) there is a documented
emergency or (2) at least three hours have elapsed.
a.
You can always place such a person into the general jail population if (1) there is a
documented emergency, (2) there is no alternative to such placement, and (3) there is
written authorization from the uniformed watch commander or uniformed supervisor
of the facility documenting the specific facts and circumstances of the emergency.
b.
Otherwise, without such an emergency, you may not place such a person into the
general jail population unless (1) he was not cited and released, (2) he was not
released on his own recognizance, and (3) he was not able to post bail after having at
least three hours to do so.
Separate rules regarding strip and body cavity searches of minors detained in a juvenile
detention center are listed in Penal Code section 4031, which makes it a misdemeanor to
conduct or authorize an unlawful search.
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C.
Booking Protocols
1.
Telephone Calls
5.8c
All arrestees have the right to three completed phone calls (instead of two) immediately upon
being booked and, unless impossible, within three hours after being arrested. (Pen. Code, §
851.5.) Custodial parents may request two additional calls. As soon as practicable, but no
later than three hours after arrest (unless physically impossible), the arresting or booking
officer shall inquire as to whether the arrested person is identified as a custodial parent with
responsibility for a minor child. The arresting or booking officer shall notify the arrestee of
the right to two additional calls for the purpose of arranging child care.
Note:
2.
It is legal for you to require the arrestee to disclose the telephone number he or
she wants to call, for you to place the call, and then--consistent with section
851.5, subdivision (b)(1)--to overtly listen to the arrestee's side of the
conversation so long as he or she is not speaking to counsel. This type of open
eavesdropping does not invade the arrestee's right to privacy or privilege
against self-incrimination, even if you tape-record what you can hear.
(Siripongs (1988) 45 Cal.3d 548; Siripongs (9th Cir. 1994) 35 F.3d 1308,
1319.)
Bail Collection Arrestees
Section 40304.5 was added to the Vehicle Code, requiring a three-hour delay before booking
certain arrestees. It applies only if:
-
the person taken into custody has fewer than three (i.e., one or two) outstanding
warrants,
AND
-
the warrant(s) were issued for failure to appear ("FTA") on either (1) a parking
citation or (2) a traffic infraction.
You must give this type of individual an immediate opportunity to post bail. DO NOT book,
photograph, fingerprint, or make an arrest record until at least three hours have passed. Tell
the person how much the bail is from the bail schedule and give him a chance to immediately
bail out. If he does not have the money, tell him he has a right to make three completed
telephone calls to try to arrange bail. He gets at least three hours to do this. If he cannot
make or arrange for bail within that time, then you can book him under your usual procedure.
Note: The prohibited "record of arrest" probably does not include an "alpha card" entry.
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Post-Booking Searches and Seizures
After the booking process is completed and an inmate's property has been inventoried and
stored, it is legal for you to go back and look at, examine, or run tests on an item of property,
such as money, a ring, or clothing, that is in plain view or has been listed among the inmate's
property. (Turner (9th Cir. 1994) 28 F.3d 981, 983; see also Wolfish (1979) 441 U.S. 520,
holding that an inmate retains almost nothing in the way of privacy.)
In other words, if the initial search and seizure of the personal property was proper (such as
incident to a lawful custodial arrest), then no warrant is needed to remove or transfer the item,
or to retrieve, test or examine it anew or again, as long as the object has remained in the
legitimate and uninterrupted possession of the police. (Turner (9th Cir. 1994) 28 F.3d 981,
983; see also Davis (2000) 84 Cal.App.4th 390, 393-396; 76 Ops.Atty.Gen. 278 (1993),
which concludes that a jail inmate's property may be searched without a warrant after
completion of the booking process.)
Be aware, however, of one (pre-Prop. 8) case that held that you need a warrant before you
belatedly open a closed, personal container (there, a woman's purse) after the booking process
is completed and the property was already stored because an inmate retains a "vestige of
privacy" in such items. (Smith (1980) 103 Cal.App.3d 840, 845-846; Smith's reasoning was
criticized in Gunn (1980) 112 Cal.App.3d 970.)
According to the most recent California case, the "key" is whether or not you are already
aware--by virtue of the inventory prepared at the time of booking--of the existence of the
item(s) you wish to examine. If you are, no "search" is taking place; you are merely
retrieving property known to be in lawful police custody, and no warrant is needed.
However, if you are not aware whether the object you are looking for is even there, then you
are indeed "searching" and a warrant may be necessary. (Davis (2000) 84 Cal.App.4th 390.)
E.
Conversations
Concerning the propriety of listening in on conversations in jail visiting rooms or
interrogation rooms, see discussion under "Bugging" in section, IX-G, below.
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F.
5.8e
Prison Visitors and Their Vehicles
"Administrative searches," i.e., random searches without probable cause, of vehicles
belonging to visitors of prison inmates are not covered in the Sourcebook. However, they are
discussed at length and upheld, generally, in Estes (1993) 14 Cal.App.4th 508, including the
use of dogs, but with stringent limitations and requirements relating to notice, duration,
distance, and the right to refuse. (See also Roark (1996) 48 Cal.App.4th 1946, concerning
searches of prison visitors, and Boulter (2011) 199 Cal.App.4th 761, concerning the search of
a jail visitor's locker outside the visitors center.)
Additionally, it is a misdemeanor to smuggle cellular phones or components into penal
institutions. Penal Code section 4576 prohibits possession with the intent to deliver or
delivering "any cellular telephone or other wireless communication device or any component
thereof, including, but not limited to, a subscriber identity module (SIM card) or memory
storage device." The provision sets out the protocol for confiscating these items if
discovered. (Pen. Code § 4576, subd. (b).)
Note:
Welfare and Institutions Code section 4139, subdivision (a)(1), has similar
provisions regarding smuggling cell phones and storage devices into state
hospitals.
IX.
EAVESDROPPING
A.
In General
The area of "eavesdropping" on conversations (i.e., overhearing, wiretapping, bugging,
monitoring, etc.) is quite complex. Not only do the general constitutional concepts of
"privacy" apply, but there are also numerous and complex statutes involved, both state and
federal. (See California's "Invasion of Privacy Act," Pen. Code, §§ 630-637.5; Title III of the
Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq; Chavez (1996) 44
Cal.App.4th 1144.)
Federal law in this area was originally enacted in Title III of the Omnibus Crime Control and
Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520, aka "Title III," the "Act," or the "Wiretap
Act"). In 1987, it was substantially revised and renamed in Title I of the Electronic
Communications Privacy Act of 1986 (18 U.S.C. §§ 2510-2521, aka "ECPA") (Konop (9th
Cir. 2001) 236 F.3d 1035, 1042; Petti (9th Cir. 1992) 973 F.2d 1441, 1443.) And in 1994, the
ECPA was further amended by "CALEA," the Communications Assistance for Law
Enforcement Act, which included cordless telephones within the federal definition of "wire
communication" and "electronic communication." (Stevens (1995) 34 Cal.App.4th 56, 6364.)
Note:
Even though many activities are now illegal under both federal law and state
law, such as the interception and recordation of cordless telephone
conversations, federal law has not "preempted" the field. Therefore, state laws
in this area are valid, as long as they are not more lenient or permissive than
the federal laws. (Stevens (1995) 34 Cal.App.4th 56, 61.)
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As a result, federal law now provides a comprehensive scheme for the regulation of
wiretapping and electronic surveillance under which, generally speaking, it is illegal for
anyone, even private persons such as spouses engaged in “domestic surveillance,” to
intercept, or try to intercept, by means of an electronic, mechanical, or any other device,
someone else’s wire, oral, or electronic communication, except as permitted in the Act itself.
(18 U.S.C. § 2511(1); Otto (1992) 2 Cal.4th 1088, 1097; see also Siripongs (9th Cir. 1994) 35
F.3d 1308, 1320 [discussing some differences between illegal interception of "wire" versus
"oral" communications under federal law]; Konop (9th Cir. 2001) 236 F.3d 1035, 1042-1048
[finding that the contents of a secure website are "electronic communications" protected from
unauthorized interception or access].)
In addition to criminal and civil penalties for unauthorized interceptions or disclosure of
information obtained through such interceptions, the federal Act provides that the contents of
illegal interceptions may not legally be used for any purpose by anyone, including the
government. In other words, even though the "exclusionary rule" normally does not apply to
evidence obtained illegally by a private person, it does apply here, because the Act itself
provides the remedy of suppression. All participants in intercepted communications have
standing to move for suppression. (Reyes (2009) 172 Cal.App.4th 671, 684.)
Thus, for example, a prosecutor would not be allowed to introduce an illegal tape recording
into evidence, even where the government was just the "recipient" of the recording rather than
the one who "procured" it. And you, as a peace officer, would not be able to use such a
recording for any purpose, such as supplying probable cause for a search warrant. (Otto
(1992) 2 Cal.4th 1088; Bunnell (1994) 21 Cal.App.4th 1811, 1817-1818.)
Example:
It was a violation of the federal Act for a husband to secretly tape-record his wife's
telephone calls from their family residence, and the recordings could not be introduced
into evidence at her trial for his murder. (Otto (1992) 2 Cal.4th 1088.)
There are, of course, some exceptions under the federal law. For instance, the Act does not
cover communication made through a tone-only paging device or communication from a
tracking device. (18 U.S.C. § 2510(1) and (12).) Likewise, it is not a violation of federal law
for a peace officer to intercept a wire, oral, or electronic communication where the officer is a
party to the communication, where one of the parties to the communication has given prior
consent for the interception (18 U.S.C. § 2511(2)(d); see Deteresa (9th Cir. 1997) 121 F.3d
460, 466) or where the telephone or telegraph equipment is being used by an investigative or
law enforcement officer in the "ordinary course of his duties." (18 U.S.C. § 2510(5)(a).)
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5.8g
Example:
It was a violation of Title III for a prison security-squad officer to place a wiretap on
the telephone used by an inmate-clerk to the captain of the investigative services unit.
It did not fit within the "ordinary course of his duties" exception because that
exception is limited to situations--such as routine prison monitoring of inmate calls as
a security measure--where use of the wiretap is ordinary and routine, not where simply
pursuing a law enforcement purpose is ordinary and routine. (Bunnell (1994) 21
Cal.App.4th 1811, 1823.)
Example:
It was not a violation of the Omnibus Crime Control and Safe Streets Act to record a
conversation between a jail inmate and his visiting wife--conducted on the jail's
communication system that did not have any outside lines--because it did not qualify
as either a "wire communication" (not done on part of an interstate system) or an "oral
communication" (not done with an exhibited expectation of privacy). (Von Villas
(1992) 11 Cal.App.4th 175, 223-225; see also Harcleroad (9th Cir. 1997) 104 F.3d
1522, 1531--no violation of federal Wiretap Act to intercept prison inmate's
conversation with a priest; and see Riel (2000) 22 Cal.4th 1153, 1183-1184.)
Other exceptions, too numerous to list, also exist. However, because the federal statutory law
is so specific, complex and demanding in this area, it will not be treated further by the
Sourcebook. Instead, the Sourcebook will concentrate on California law, namely, the
"Invasion of Privacy Act," Penal Code sections 630-637.5.
B.
Wiretapping
Aside from the exceptions discussed below, California peace officers are not allowed to
"wiretap" (i.e., to connect or "tap" a listening device into a wire that is transmitting a
conversation), even by warrant, when neither party to that conversation knows about the
intercept. (Pen. Code, §§ 631, 633.)
Note:
Federal law permits more wiretaps than California law (see 18 U.S.C. §
2516(1)), although the general provisions and procedures are parallel. If
federal agents conduct a wiretap that is legal under federal law, the evidence
they obtain is admissible in state court proceedings. (Ratekin (1989) 212
Cal.App.3d 1165.) Conversely, when exclusion of wiretap evidence is
required under federal wiretapping statutes, the evidence cannot be admitted
under California law. (Jackson (2005) 129 Cal.App.4th 129; Bunnell (1994)
21 Cal.App.4th 1811, 1817.)
Note:
Officers may not rely on the "good faith" exception if the wiretap order fails to
conform to California's statutory provisions. (Jackson (2005) 129 Cal.App.4th
129, 153-160.)
Note:
The privileges and procedures of Evidence Code sections 1040-1042
concerning the protection of a confidential informant's identity apply to
affidavits for wiretap authorization. (Acevedo (2012) 209 Cal.App.4th 1040.)
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Much of California's wiretap legislation, commencing with Penal Code section 629.50, was
mandated by federal legislation. Familiarity with the federal counterpart (18 U.S.C. § 2510 et
seq.) will help in understanding the California law. (See Jackson (2005) 129 Cal.App.4th 129
for a thorough discussion of California wiretap law.)
Under California's restrictive law, only certain designated officials (the Attorney General, the
Chief Deputy Attorney General, the Chief Assistant for the Criminal Division, a district
attorney, or the person designated to act as district attorney in the district attorney's absence)
may make an "application" with a supporting "affidavit" (involving considerably more
documentation than the conventional search warrant, including review by the chief executive
officer of the agency) to the presiding judge of the superior court or a judge designated by the
presiding judge for an "order" authorizing interception of wire or electronic communications
in the investigation of certain felony offenses: designated narcotics offenses (namely,
importation, possession for sale, transportation, manufacture, or sale of designated controlled
substances, including heroin, cocaine, PCP, methamphetamine, or their analogs [but not
marijuana], where the quantity of the substance is over 10 gallons if a liquid or over 3 pounds
if a solid), as well as in cases of murder, solicitation to commit murder, kidnapping, terrorist
activity involving weapons of mass destruction, crimes relating to the possession or use of
destructive devices, participation in a criminal street gang, human trafficking, conspiracy to
commit any of these offenses, or an attempt to commit any listed offense. (Pen. Code, §§
629.50, 629.52.)
There must be probable cause to believe that particular communications concerning illegal
activities will be obtained through the wiretap and that the tapped facilities are used, about to
be used, or leased by the suspect. (Pen. Code, § 629.52, subds. (b) and (c); see Camel (2017)
8 Cal.App.5th 989--if the court's determination of probable cause is challenged, the usual
"totality of the circumstances" test applies.) Furthermore, it must be demonstrated that
"normal" investigative procedures have been tried and have failed, are unlikely to succeed, or
are too dangerous to utilize. (Pen. Code, § 629.52, subd. (d); see Leon (2007) 40 Cal.4th 376;
Roberts (2010) 184 Cal.App.4th 1149, 1172; Zepeda (2001) 87 Cal.App.4th 1183, 1207-"necessity" was shown where case was circumstantial, witnesses were reluctant to come
forward, interrogation of suspect was not likely to succeed, evidence was likely to be
destroyed, etc.) Additionally, every wiretap order must be conducted as to "minimize the
interception" of unrelated conversations (Pen. Code, § 629.58) and the government is required
to adopt reasonable measures to achieve minimization (Sedillo (2015) 235 Cal.App.4th 1037;
Roberts (2010) 184 Cal.App.4th 1149).
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5.9
Informal applications may be made when there is a "life or limb" emergency but must be
followed by a formal written application by midnight of the second full court day after the
oral approval. (Pen. Code, § 629.56.) Covert entry into a residence, including hotel and
motel rooms, is prohibited. (Pen. Code, § 629.89.)
The law also requires progress reports to the court, at least every 10 days. (Pen. Code, §
629.60; see Roberts (2010) 184 Cal.App.4th 1149, 1186, regarding substantial compliance.)
Within 10 days of an order authorizing an interception, a report must be made to the Attorney
General showing what persons, facilities, and places are to be intercepted and the action taken
by the judge on each application. (Pen. Code, § 629.61, subd. (a).) Authorization orders are
limited to the period necessary and in no event longer than 30 days, but extensions may be
obtained upon a showing of necessity. (Pen. Code, § 629.58.)
In addition to the targeted interceptions, upon application, intercepted communications
relating to any violent felony listed in Penal Code section 667.5, subdivision (c), and the
crimes listed in Penal Code section 629.52 may be used in criminal proceedings. (Pen. Code,
§ 629.82, subd. (a); see Roberts (2010) 184 Cal.App.4th 1149, 1177-1178.)
All peace officers who are involved with wiretaps must be trained specifically by P.O.S.T.
and certified by the Attorney General. (Pen. Code, § 629.94.)
The Attorney General's Electronic Surveillance Coordinator is Jesse Witt (916) 324-5265.
Another knowledgeable source is Tam Hodgson in the Kern County District Attorney's
Office, (661) 868-2040, thodgson@co.kern.ca.us.
C.
"Pen Registers" and "Traps"
Pen registers and "trap and trace" devices are covered in Chapter 6-XX-B. (See Pen. Code,
§§ 638.50-638.53.)
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D.
Electronic Eavesdropping and Recording
1.
Statutory Prohibition
Generally speaking, California's Invasion of Privacy Act prohibits the electronic
eavesdropping (monitoring) or recording of any "confidential communication" without the
consent of all the parties.
"Confidential communication" means any communication in which a participant would have
a reasonable expectation of privacy. (Pen. Code, § 632, subd. (c).) In Flanagan (2002) 27
Cal.4th 766, 768, 776, the California Supreme Court held that "a conversation is confidential
if a party to that conversation has an objectively reasonable expectation that the conversation
is not being overheard or recorded."
Example:
If two private persons were having a telephone conversation, it would normally be
illegal for one party to secretly tape record the conversation, even on an answering
machine. (Frio (1988) 203 Cal.App.3d 1480.)
Example:
It would be illegal to listen--by means of an electronic device--to a conversation that
someone was making from a public telephone booth. (Katz (1967) 389 U.S. 347.)
This prohibition includes communication between every kind of telephone, including cellular
and land-line telephones.
Specifically, under sections 632.5 and 632.6, it is illegal for anyone to "maliciously"
intercept, receive, or assist in intercepting or receiving, a communication transmitted between
any type of telephone, without the consent of all the parties.
Note:
If the listener eavesdrops and records a telephone conversation, it is a violation
of section 632.7, regardless of his or her purpose, because under that statute no
"malice" is required.
Note:
Beginning in 2017, the intentional disclosure or distribution of a confidential
communication with a health care provider obtained in violation of section 632
"in any manner" and "in any forum" is chargeable as a misdemeanor or felony.
(Pen. Code, § 632.01.) The statute specifically identifies the distribution of
"electronic content" as including still photographs in addition to videos,
podcasts, text messages, and Internet web site profiles.
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Furthermore, under section 632.7, it is illegal for anyone to listen in on ("intercept or
receive") "and intentionally record" other people's cell phone or cordless telephone
conversations, without the consent of all the parties.
Example:
Note:
A well-meaning citizen comes in and tells you that he has overheard a neighbor on the
phone plotting to commit X crime. You ask him if he has tape-recorded what he
heard. If he has not, and you ask him to listen some more and record what he hears
and bring it to you, you are asking him to commit an offense punishable by a
maximum of three years in prison and a fine of up to $10,000! And if he has already
recorded some conversations and brings them to you, not only has he committed this
crime, but the tapes MAY NOT BE USED FOR ANY PURPOSE, even getting a
search warrant. Therefore, you should not even listen to such tapes. Instead,
"debrief" the citizen about what he has heard and use that information to go forward.
The prohibition is not limited to cellular or cordless telephone conversations.
Rather, it includes any kind of radio (broadcast) frequencies where the user
expects privacy. This would no doubt include, therefore, any kind of
telephone or pager device, but not transmissions made over a "citizens' band"
radio.
Confusion in this area exists because, on the one hand, both federal and state law prohibit
anyone, including a police officer, from intercepting and recording other people's cell or
cordless phone conversations; whereas, under both federal and state law, there is an exception
where a peace officer, or someone acting at his direction, records a conversation, and the
peace officer or police agent is an actual party to the telephone conversation.
In other words, no one may ever legally record a private conversation between two other
people; but if the recording is made by someone who is participating in the conversation,
there are exceptions under which it may be legal (see "Exceptions," below).
Note that section 632 is probably limited to "sound-based or symbol based communication,"
as opposed to mere photographs of communication. (Drennan (2000) 84 Cal.App.4th 1349,
1353-1355; emphasis added.) Thus, in Drennan, the court found no violation where a secret
camera took a picture, every three seconds, of a school principal's office, including scenes
where he was communicating with others privately.
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Because there was no accompanying sound, no "communication" was recorded. The same
court noted, however, that there may well have been a violation of former Penal Code section
647, subdivision (k) (now Penal Code, § 647, subd. (j)). (Drennan (2000) 84 Cal.App.4th
1349, 1353-1355.)
Note:
The Drennan court disapproved an earlier case, Gibbons (1989) 215
Cal.App.3d 1204, which found a violation of California's privacy statutes
(Pen. Code, §§ 630, 632) where the defendant secretly videotaped his sexual
encounters with different unsuspecting females at his residence, on the theory
that intercourse is a protected form of "communication."
There is no prohibition against just standing openly near enough to hear, with your unaided
ear, one side of the conversation, or even against tape-recording what you hear in order to
preserve it. Such non-electronic eavesdropping constitutes neither an illegal "interception"
nor an unreasonable invasion of privacy. (Siripongs (1988) 45 Cal.3d 548; Siripongs (9th
Cir. 1994) 35 F.3d 1308, 1320.)
On the other hand, if the conversation is "privileged" and involves an inmate--for instance, an
inmate talking to his attorney--then it is a crime for you to "eavesdrop" at all, even without
the aid of any electronic device. (Pen. Code, § 636.)
a.
Exception - One Party Consents and Peace Officer Monitors
There is an exception to the general statutory prohibition against electronic eavesdropping
that permits most peace officers legally to listen in on and/or record many types of otherwise
"confidential" conversations. Specifically, it is perfectly legal, under the statutes, to monitor,
listen in on, or record an otherwise "confidential" conversation as long as:
-
at least one party to the conversation has consented or agreed to the monitoring or
recording; and
-
the monitoring or recording is done by one of the types of law enforcement personnel
listed in the statutes. (Pen. Code, §§ 633, 633.05.)
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The "one party" who must give consent here can be you if you are a party to
that conversation.
Example:
It is proper for you to listen in on an extension phone, with your "snitch's" consent,
while he makes a call to a suspected seller of narcotics.
Example:
It is proper for you to use a "shotgun mike" to overhear a conversation between an
undercover operator and a suspect, when it is done with the undercover operator's
consent.
Example:
It is proper for you to "wire" an undercover operator to make a "buy," then sit in your
vehicle and listen to or record the conversation that is being transmitted back to you.
Example:
It is proper for you to direct someone to record his telephone conversations about "X"
topic, and the recordings will be admissible even though you were not present and
there was no direct supervision at the time they were made. (The safest course is to
supply some of the equipment.) (Towery (1985) 174 Cal.App.3d 1114.)
As stated, however, this exception applies only to certain statutorily designated law
enforcement personnel. While the statute does include most of you (i.e., city police officers
and county sheriffs), it does not, for example, include university policemen. (Pen. Code,
§ 633.) A separate provision, effective January 2016, allows university and college police to
monitor and record conversations, but only in criminal investigations related to sexual assault
or other sexual offenses. (Pen. Code, § 633.02, subd. (a).)
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Exception - To Gather Evidence of Certain Crimes
Another portion of the Privacy Act permits anyone to electronically eavesdrop (monitor) or
record a conversation as long as:
-
one party (normally the victim, the police, or the parent of a child victim) has given
consent; and
-
the electronic eavesdropping or recording is being done in order to gather criminal
evidence against the other party to the conversation (i.e., the caller); and
-
the other party is suspected of having committed certain specified crimes that the
evidence relates to.
The specified crimes are (1) extortion, (2) kidnapping, (3) bribery, (4) any felony involving
"violence" against a person, (5) human trafficking, (6) obscene or harassing phone calls, and
(7) domestic violence. (Pen. Code, § 633.5; Parra (1985) 165 Cal.App.3d 874.)
Example:
Victim records a ransom call from a kidnapper. The tape is admissible at trial because
it falls within the statutory exception and the caller has no expectation of privacy in
such a phone call.
Example:
At the direction of police, Graybill used his own tape recorder to record a call from the
defendant, who was suspected of robbery and murder. The recording was statutorily
and constitutionally legal, and therefore properly admitted into evidence. (Phillips
(1985) 41 Cal.3d 29.)
Example:
Victim's mother, who was concerned that her 12-year-old babysitter was harming her
4-year-old son, secretly recorded a babysitting session. The recording revealed acts of
forcible sexual molestation. HELD: Under the vicarious consent doctrine, the § 633.5
consent exception "can be satisfied when a parent gives consent on behalf of a minor
child based on an objectively reasonable belief that the recording will produce
evidence of an enumerated crime and that the recording is in best interest of child."
(Trever P. (2017) 14 Cal.App.5th 486.)
In addition, at the request of a victim of domestic violence who is seeking a restraining order,
the judge issuing the order may include a provision that permits the victim to record any
prohibited communications made to him or her by the perpetrator. (Pen. Code § 633.6, subd.
(a). Starting in January 2018, a domestic violence victim may, in advance of obtaining a
restraining order, record a confidential communication for the exclusive purpose of providing
evidence to the court in support of a request for a domestic violence restraining order. (Pen.
Code, § 633.6, subd. (b).)
Also, peace officers designated by the district attorney or the state Attorney General may use,
or authorize the use of, an electronic amplifying or recording device to eavesdrop on or record
oral communications in hostage situations and situations where a location is barricaded. The
requirements and restrictions for electronic eavesdropping under these circumstances are
listed in Penal Code section 633.8.
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c.
5.11
Exception - All Parties Consent
Another statute forbids you (or anyone else) from electronically eavesdropping or recording
certain types of "confidential" conversations unless all parties to the conversation agree.
These include conversations between (1) a person who is in your physical custody or who is
on law enforcement or other public agency property and (2) that person's attorney, religious
advisor or licensed physician. (Pen. Code, § 636.) In other words, unilateral bugging of
attorney-client conversations is illegal.
The same statute likewise prohibits the non-electronic eavesdropping of such conversations,
without permission from all the participating parties, where the conversation occurs "in a
place, and under circumstances, where there exists a reasonable expectation of privacy,
including a custody holding area, holding area, or anteroom." However, this prohibition does
not apply "to conversations that are inadvertently overheard or that take place in a courtroom
or other room used for adjudicatory proceedings." (Pen. Code, § 636, subd. (b).)
2.
Constitutional Prohibitions
Even assuming that it is legal for you to electronically eavesdrop or record a conversation
according to the exceptions in the Privacy Act statutes, there is still the underlying
constitutional concept of "privacy" to consider. In other words, it is possible for someone to
overhear a conversation without violating any statute or law, but still have a court suppress
the evidence because the eavesdropping violated the suspect's constitutional right to privacy.
Example:
Telephone lineman properly overheard a conversation while making repairs to the
lines, but the incriminating statements he heard were nevertheless inadmissible in
court. (Tavernetti (1978) 22 Cal.3d 187.)
Example:
Regarding a confession that a jail inmate made over a visitor's booth telephone to a
priest he had summoned and which was tape-recorded, the inmate had no reasonable
expectation of privacy under the Fourth Amendment, but the priest did. (Harcleroad
(9th Cir. 1997) 104 F.3d 1522, 1531-1533.)
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Unaided Eavesdropping
You may legally eavesdrop on a conversation without the aid of a mechanical or electronic
device as long as you hear it from a location where you have a lawful right to be.
Example:
A conversation that you hear by placing your ear to a common wall would be
admissible. (Kaaienapua (1977) 70 Cal.App.3d 283.)
Example:
A conversation that you hear by eavesdropping at an apartment door would be
admissible. (Guerra (1971) 21 Cal.App.3d 534; Goodson (1980) 106 Cal.App.3d
Supp. 5.)
Example:
After his arrest, an intoxicated murder suspect asks to make a phone call. You stand
near the suspect during the call and hear him say, "They got me down here because I
blew a guy's head off." This statement would be admissible. (Siripongs (1988) 45
Cal.3d 548; Siripongs (9th Cir. 1994) 35 F.3d 1308, 1319.)
Remember, however, Penal Code section 636 makes it a felony to eavesdrop, even without
the aid of an electronic device, upon a conversation between an inmate and his attorney,
religious advisor, or licensed physician. (See also, Barber (1979) 24 Cal.3d 742, 751-752;
Torres (1990) 218 Cal.App.3d 700, 705.)
F.
Police Radio Interception
It is a misdemeanor for any unauthorized person to intercept any police radio service
communication, by use of a scanner or any other means, for the purpose of assisting in a
crime, or to avoid arrest, trial, conviction, etc., or to tell another person, known to be a
suspect, about the communication so that the other person can avoid those same things. (Pen.
Code, § 636.5.)
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G.
5.12a
"Bugging" In-Custody Conversations
"Bugging" is just another form of electronic eavesdropping. "Bugging" conversations of
private persons who are not in custody is governed by the same statutory and constitutional
considerations discussed above.
On the other hand, "bugging" conversations of persons who are in custody (e.g., in a police
vehicle, in a jail or prison, or in a facility visitation room) is a different matter.
Generally speaking, persons in custody are viewed as having such a low expectation of
privacy that it is perfectly legal to "bug" their conversations. (Wolfish (1979) 441 U.S. 520;
Ahmad A. (1989) 215 Cal.App.3d 528; Von Villas (1992) 11 Cal.App.4th 175, 210-226.) In
other words, the secret monitoring and recording of unprivileged conversations in prisons,
jails, and police stations does not constitute an unlawful search under the Fourth Amendment.
(Riel (2000) 22 Cal.4th 1153, 1183-1184.)
In the past, California had a more narrow rule, based on language in Penal Code sections
2600 and 2601 (which granted inmates the "civil right" of "personal visits" and limited
monitoring to situations involving institutional "security"). (See De Lancie (1982) 31 Cal.3d
865; Gallego (1990) 52 Cal.3d 115, 169). Following the 1994 amendment to section 2600,
California law permits law enforcement officers to monitor and record unprivileged
conversations between inmates and their visitors. (Loyd (2002) 27 Cal.4th 997, 1010.)
Note:
Example:
Remember that thanks to Proposition 8, even if evidence is obtained in
violation of California law (under a state statute or the state constitution), it is
nevertheless admissible at trial unless exclusion is required as a remedy under
the federal Constitution. (McKay (2002) 27 Cal.4th 601, 608; Hines (1997) 15
Cal.4th 997, 1043; Charles C. (1999) 76 Cal.App.4th 420, 426.)
It was proper to admit into evidence a tape recording of a jail conversation between
defendant and his wife. They had no Fourth Amendment expectation of privacy given
the facility's need for security; taping the conversation did not violate the federal
Omnibus Crime Control and Safe Streets Act (18 U.S.C. § 2510 et seq.); and if it
violated Penal Code section 2600, that statute does not provide for exclusion as a
remedy. (Von Villas (1992) 11 Cal.App.4th 175, 210-226; see also Hines (1997) 15
Cal.4th 997, 1043.)
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Example:
While defendant was in jail awaiting trial, officials secretly tape-recorded a
conversation between him and his mother and sister that took place in the jail visiting
room. The recording was admissible. (Riel (2000) 22 Cal.4th 1153, 1183-1184.)
Example:
Monitored conversations of an inmate who has threatened to kill prosecution
witnesses (White (1984) 161 Cal.App.3d 246) or who has made various plans to
escape (Gallego (1990) 52 Cal.3d 115, 170) would be properly admissible, even under
California law, because concerns about public protection and institutional security are
present.
Example:
The secretly tape-recorded conversation of two males who had been arrested and
placed in a police car was admissible in court, even though (1) they were put in the
vehicle with the specific hope that they would make incriminating statements and (2)
one of them had already invoked his Miranda rights. (Lucero (1987) 190 Cal.App.3d
1065; Seaton (1983) 146 Cal.App.3d 67.)
Example:
A secretly tape-recorded incriminating conversation between a minor and his mother,
held at the police station, was admitted into evidence at trial, despite an apparent
violation of Penal Code section 2600, because under federal law the minor had no
expectation of privacy in such a setting (Fourth Amendment) and the conversation
with his mother could not be equated with speaking to an attorney under the Fifth or
Sixth Amendments. (Ahmad A. (1989) 215 Cal.App.3d 528; see also Gallego (1990)
52 Cal.3d 115, 170.)
Example:
A molestation victim, working with the police, recorded incriminating telephone
conversations from a jailed pretrial detainee. HELD: No constitutional (Fourth
Amendment) or statutory (Pen. Code, § 2600) violation. (Plyler (1993) 18 Cal.App.4th
535, 542-544.)
Example:
During rebuttal, the prosecution played the tape of a conversation that had been
secretly recorded between two suspects in a holding cell on the afternoon of their
arrest. The California Supreme Court rejected claims that the recording violated the
Fourth Amendment or federal privacy statutes (the Omnibus Crime Control and Safe
Streets Act of 1968). Furthermore, the court went on to note that even assuming the
recording violated California's Constitution or privacy laws, it was nevertheless
admissible because, thanks to Proposition 8, federal law controls admissibility. (Hines
(1997) 15 Cal.4th 997, 1043.)
Also, recording what an inmate "blurts out" is not the same as recording a "conversation."
Example:
An arrestee was taken to an interview room where he invoked his Miranda rights. The
officer left the room briefly to obtain the booking forms. While he was alone, the
arrestee blurted out, "I'm really nailed now." The secret recording of this remark did
not violate California's privacy statutes because there was no "conversation," which
requires at least two persons. (Elwood (1988) 199 Cal.App.3d 1365, 1371.)
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There is one exception to all this. If you go out of your way, by conduct and/or comments, to
expressly "lull" the inmate (or any individual) into believing his conversation will be private
when in truth it is going to be monitored, you have probably violated a Fourth Amendment
reasonable expectation of privacy, meaning that the tape-recorded conversation will have to
be suppressed. (North (1972) 8 Cal.3d 301.)
Example:
Two suspects arrested on suspicion of burglary were awaiting arraignment. One
invoked his right to silence, but the other said he wanted to talk to the first one. The
officer permitted the meeting, which was secretly tape-recorded, but led the suspects
to believe it would be a private conversation between just the two of them. The
recording violated the Fourth Amendment and therefore had to be suppressed.
(Hammons (1991) 235 Cal.App.3d 1710.)
As to recording inmate telephone conversations, "meaningful notice" that the calls "may be
monitored" places the wiretap outside the prohibitions of Title III (18 U.S.C. § 2511(1)(a))
because the inmate "consents" to the monitoring by using the prison telephone. (Kelley
(2002) 103 Cal.App.4th 853; Windham (2007) 145 Cal.App.4th 881.)
Example:
X.
Shortly before trial, the prosecutor asked that the prison record Kelley's outbound
calls. The recorded conversations were used to obtain search warrants that yielded
evidence central to the prosecution's case. HELD: The wiretap of the telephone calls
was permissible under the consent exception to the federal wiretap laws. A warning
sign above the prison phones advised that the telephones "may be monitored," and the
prison telephone system warned that all calls were subject to monitoring or recording.
Kelley's use of the telephones constituted implied consent to the taping of his calls.
(Kelley (2002) 103 Cal.App.4th 853; Windham (2007) 145 Cal.App.4th 881.)
ELECTRONIC SURVEILLANCE/BEEPERS
Attaching a GPS to a person's body for the purpose of tracking the person's movements,
without consent, constitutes a search under the Fourth Amendment. (Grady (2015) 135 S.Ct.
1368.)
With regard to vehicles, prior to January 2012, it was lawful for police, acting without a
warrant or any particularized suspicion, to place an electronic tracking device or "beeper" on
someone's vehicle, or in an object transported by a vehicle, to monitor the vehicle, object, or
person's location or movement, so long as the officer was in a place he or she had a right to
be. (Knotts (1983) 460 U.S. 276; Karo (1984) 468 U.S. 705; Zichwic (2001) 94 Cal.App.4th
944, 956; Pineda-Moreno (9th Cir. 2010) 591 F.3d 1212.) The only restriction was that, if the
object was taken inside a private residence, police could not continue to monitor it without a
warrant. (Karo (1984) 468 U.S. 705, 715.)
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In Jones (2012) 565 U.S. 400, the U.S. Supreme Court found that the use of a GPS device is a
search. Federal officers had installed a tracking device to the undercarriage of Jones' wife's
Jeep parked in a public lot in Maryland one day after their warrant for use of GPS tracking
had expired. The Jeep was tracked for 28 days, and Jones was ultimately charged with
conspiracy to commit narcotics offenses. The government claimed that use of the GPS
tracking was not a search. The Court disagreed and found that the installation of a GPS
device and the use of the device to monitor the vehicle's movements constituted a search
under the Fourth Amendment. The Court did not decide if the searches were reasonable
(because the government forfeited that claim) or address whether other justifications such as
exigency or consent would allow warrantless GPS tracking in a different case.
In response to Jones, Penal Code section 1524 was amended to include the use of a tracking
device for investigating any felony and all misdemeanor violations of the Fish and Game
Code and the Public Resources Code. (Pen. Code, § 1524, subd. (a)(12).) The protocols for
obtaining and executing a 30-day tracking device search warrant for use in California-including re-issuances, returns, and service--are laid out in Penal Code section 1534,
subdivision (b). (See Ch. 6-XVII-A-3.)
Note:
It is important to keep in mind that the use of tracking devices prior to the
decision in Jones was not considered to be a search. If evidence obtained from
a pre-Jones tracking operation is challenged in court, the Supreme Court's
decision in Davis prevents the exclusion of evidence. (Mackey (2015) 233
Cal.App.4th 32, 94-95.) The Court in Davis recognized that the exclusionary
rule will not apply when officers follow well-established legal precedent.
(Davis (2011) 564 U.S. 229, 240; Pineda-Moreno (9th Cir. 2012) 688 F.3d
1087; see also Herring (2009) 555 U.S. 135--use of the exclusionary rule
requires both culpable conduct and a deterrent effect.)
Also, Jones only applies to the government's use of tracking devices. It does not apply to
analysis of a vehicle's "black box" SDM when the vehicle is an instrumentality of a crime.
(Diaz (2013) 213 Cal.App.4th 746.) And if a private person places an electronic beeper on
his or her own property so that police may locate the property if it gets stolen, it is lawful for
police to monitor the beeper even after it is taken inside the suspect's hideout or residence.
Example:
Payless Drug Store placed a "property tag," or electronic beeper, inside bank deposit
bags containing $14,000. When the bags were stolen, it was proper for the police to
determine, by monitoring the beeper, that the property was inside a specific motel
room at the time they made a warrantless entry. The beeper had been placed on the
property by a private party, both the beeper and property were stolen, and the thieves
had no reasonable expectation of privacy in the stolen property. (Erwin (1997) 55
Cal.App.4th 15, 18-20.)
Jones further does not apply to stolen property equipped with a GPS device if the owner
consents to tracking. For example, a woman who was robbed consented to the police tracking
her cell phone that was in her stolen purse. The thief could not object to the warrantless
tracking of the stolen phone. (Barnes (2013) 216 Cal.App.4th 1508.)
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In California, it is a misdemeanor for any "person or entity in this state to use an electronic
tracking device to determine the location or movement of a person." (Pen. Code, § 637.7.)
This section does not apply if the device is used on a vehicle with the consent of the vehicle's
registered owner, lessor, or lessee. This provision does not apply to law enforcement's lawful
use of an electronic tracking device. (Pen. Code, § 637.7, subd. (c).)
XI.
BUSINESS RECORDS
Under California law, you need "legal process," i.e., a warrant or subpena, in order to search
someone's business records unless (1) exigent circumstances exist, (2) consent is obtained, or
(3) the search is part of a valid inventory.
Example:
A warrant or subpena is necessary to obtain from the telephone company the name or
address of a subscriber to an unlisted number who is suspected of criminal activity
(bookmaking). (Chapman (1984) 36 Cal.3d 98.)
Example:
"Legal process" is necessary to obtain the record of charges a suspect makes to his
credit card account. (Blair (1979) 25 Cal.3d 640.)
Example:
A warrant or subpena is necessary to obtain a suspect's bank account records.
(Burrows (1974) 13 Cal.3d 238.) Note, however, that if the suspect was not a
signatory on the account, he would lack "standing" to challenge the police for
obtaining those records without a warrant. (Meyer (1986) Cal.App.3d 1150.)
However, no "legal process" is necessary--i.e., the bank has authority to consent to the release
of the records--if the bank itself is the victim of wrongdoing relating to the suspect's account.
(Nosler (1984) 151 Cal.App.3d 125; Nece (1984) 160 Cal.App.3d 285.)
Likewise, Government Code section 7480 provides some additional exceptions. If a crime
report has been filed involving the fraudulent use of bank checks, drafts, access cards, etc.,
you may obtain certain specified information about use of the account in question, including
surveillance photographs and video recordings of persons accessing the crime victim's
financial account at an ATM or from within the institution. (Gov. Code, § 7480, subd. (b).)
In the case of fraudulent use of a customer's checks, access cards, etc., you may request, with
the consent of the account holder, that the financial institution provide certain detailed
information, including surveillance photographs and video recordings of the person who
accessed the victim's accounts. (Gov. Code, § 7480, subd. (c).)
Federal cases do not recognize an expectation of privacy in such business, financial, post
office box (Pearson (1985) 169 Cal.App.3d 319) or telephone records (Lissauer (1985) 169
Cal.App.3d 413), so "legal process" is not required in order to search them. (Miller (1976)
425 U.S. 435; Smith (1979) 442 U.S. 735.) Nevertheless, it is safer to follow the California
procedure (1) because a warrant is required by statute in this state for records of "financial
institutions" (Gov. Code, § 7460 et seq.) and (2) because Proposition 8 did not change
citizens' rights, but rather only the remedy for a violation of those rights. (But see Slaton
(1990) 222 Cal.App.3d 1041, which approved the warrantless seizure of loan applications and
supporting financial data that the suspect had submitted to institutional lenders.)
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XII.
PRIVATE PERSONS
A.
"Private" Arrests
For what offense: A private person may make an arrest for any misdemeanor or infraction
committed in the person's presence and for any felony as long as there is probable cause
that the suspect committed it; in other words, the felony need not have been committed in the
presence of the person making the arrest. (Pen. Code, §§ 16, 837.) The "presence"
requirement for a misdemeanor is liberally construed. (Bloom (2010) 185 Cal.App.4th 1496,
1501-- a violation of Pen. Code, § 653x for annoying or harassing calls to 9-1-1 was
committed in the dispatcher’s presence (her sense of hearing).)
How the arrest is made: If the private person actually makes the arrest, he or she then
"must" take the arrestee, without unnecessary delay, either before a magistrate or deliver the
arrestee to a peace officer. (Pen. Code, § 847.) However, the private person has other
options, namely, to "delegate" the actual making of the arrest to a police officer summoned to
the scene based on the authority to summon help provided in Penal Code section 839.
(Bloom (2010) 185 Cal.App.4th 1496, 1502; Padilla (1986) 184 Cal.App.3d 1022, 1030.)
More specifically, the private person can merely detain the suspect, summon the police, and
then either expressly tell the officer to make the arrest or do so indirectly by pointing the
suspect out. Similarly, if the private person does not want to detain or even speak to or
directly confront the suspect in any way, he can summon an officer, describe what he saw (the
offense), and point out the suspect. (Johanson (1995) 36 Cal.App.4th 1209, 1217; Johnson
(1981) 123 Cal.App.3d 495; Green (1977) 68 Cal.App.3d 536; Sjosten (1968) 262
Cal.App.2d 539.)
Example:
In one night, defendant made 40 annoying calls to 9-1-1 dispatch. The dispatcher
requested a citizen's arrest for a violation of Penal Code section 653x and executed a
citizen's arrest complaint form before officers drove to defendant's location and placed
him under arrest on behalf of the dispatcher. HELD: The dispatcher lawfully
delegated the arrest to officers, and she was not required to either physically restrain
the defendant or to be present when he was taken into custody. "Delegating the task
by summoning a police officer to assist in making the arrest is most prudent for a
private citizen, to avoid the danger of a confrontation with the suspect." (Bloom
(2010) 185 Cal.App.4th 1496.)
For the purposes of a citizen's arrest, all parties should be clear that, legally, it is still the
private person who has made the arrest even when the seizure of the arrestee is delegated to
a peace officer. Note also that a private person must proceed "as soon as possible" after the
commission of the offense to make the arrest or delegate the arrestee's seizure. (Bloom
(2010) 185 Cal.App.4th 1496, 1502.)
The officer's responsibility: Once you have "received" the arrestee or otherwise taken
custody of him, you have three options: (1) book the suspect into jail (this is the typical
disposition for a felony); (2) cite and release the suspect; or (3) simply release him, without
issuing a notice to appear. This third option is the way to go when you believe there are
"insufficient grounds for making a criminal complaint." (Pen. Code, § 849, subd. (b)(1).)
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All arrests must be supported by probable cause. However, you have no obligation to assess
or otherwise judge the merits of a case before "receiving" the arrestee. For example, you
need not decide who is telling the truth about a contested "disturbing the peace" or assault
situation. (Kinney (1970) 8 Cal.App.3d 761.) Under state law, you and your agency are
immune from any liability for false arrest or false imprisonment as long as (1) the arrest was
lawful; or (2) you had a reasonable basis for believing the arrest was lawful; or (3) the crime
committed was a felony; or (4) the arrest was made pursuant to the requirements of Penal
Code sections 142, 837, 838, or 839. (Pen. Code, § 847.)
In other words, in virtually all situations involving a private arrest, your duty is simply to
"receive" the arrestee and remove him or her from the scene. Indeed, many agencies always
"receive," no exceptions, bearing in mind that you always have the option of a section 849,
subdivision (b), release--even an immediate one right at the scene--if appropriate.
On the other hand, when confronted with the situation where the private arrest was for a noncrime (such as name-calling, owning a dog, or standing on the corner), and out of concern that
they will be creating problems if they "receive" or remove the suspect when there has been no
"lawful arrest" for a "public offense," some agencies prefer to handle the matter as they would
any other civil dispute--talking to the complaining party and pointing out the possible
drawbacks of going forward.
As to which way to go on this, you should check your own department's policy.
Note:
B.
Penal Code section 142 addresses the liability for refusing to receive a person
subject to arrest. In 2003, the statute was amended so that the penalty
provisions of Penal Code section 142 would not apply to § 837 citizen arrests.
(Pen. Code, § 142, subd. (c).) The 2003 amendment did not affect an officer's
"authority to receive or arrest" a person charged with a criminal offense.
"Private" Searches and Seizures
The purpose of the Fourth Amendment is to prevent unreasonable searches and seizures by
government personnel, not private persons. (Skinner (1989) 489 U.S. 602, 614.) Therefore,
evidence obtained as a result of searches and seizures by "private" persons will not be
suppressed, unless the private citizen is found to have been acting as an agent of the
government. (North (1981) 29 Cal.3d 509; Wilkinson (2008) 163 Cal.App.4th 1554, 1564;
Warren (1990) 219 Cal.App.3d 619; Christopher H. (1991) 227 Cal.App.3d 1567, 1573.)
As for when a private person will be considered a governmental agent, it depends on whether
the governmental participation is significant or minor. Courts will look to (1) the
government's knowledge and acquiescence and (2) the intent of the party performing the
search. (Warren (1990) 219 Cal.App.3d 619; Wilkinson (2008) 163 Cal.App.4th 1554.)
Even conduct by a "governmental agent" will not necessarily qualify as a "search" or a
"seizure" under the Fourth Amendment unless it was conducted with the intent of assisting
the government in its investigatory purpose and not for some other, unrelated and independent
purpose.
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As to private persons who are not governmental agents, once a private search uncovers
contraband, the owner's privacy has been negated and police may lawfully reopen the
container without a warrant. (Wilkinson (2008) 163 Cal.App.4th 1554, 1572; Warren (1990)
219 Cal.App.3d 619.) However, police cannot go beyond what was apparent through the
private search. (Michael E. (2014) 230 Cal.App.4th 261.)
Example:
Note:
Private freight carrier employees opened a damaged package and found a powdery
white substance in plastic bags concealed inside a tube. They called the DEA, then
replaced everything. DEA agent reopened the package, removed trace of powder and
conducted field test, which tested positive for cocaine. Then a warrant was obtained.
HELD: The removal and reopening by the agent was legal because it did not exceed
scope of what private party had done. The field test involved only a tiny amount and
was not a search anyway in that the test could only reveal cocaine. Possessing cocaine
is not a legitimate privacy interest. (Jacobsen (1984) 466 U.S. 109.)
If a field test yields only inconclusive results, you should obtain a search
warrant before conducting a more specific lab test on the substance. (Leichty
(1988) 205 Cal.App.3d 914.)
Example:
Wilkinson's roommate and her boyfriend became suspicious that Wilkinson might
have been using the roommate's webcam to secretly record them in intimate situations.
Roommate's boyfriend investigated the computer file records, called the police, and
made a citizen's arrest. The officer who accepted the arrest told roommate and her
boyfriend that he did not have independent probable cause based on what they had
told him, but he could not ask them to look for physical evidence in Wilkinson's room
or act as an agent on his authority. After the officer left, roommate's boyfriend
conducted a search of Wilkinson's room and found discs with explicit images. HELD:
It was a private search that did not implicate the Fourth Amendment. The officer did
not affirmatively encourage, instigate, or initiate the search of Wilkinson's room, the
seizure of the discs, or the initial viewing of the images. However, it became an
illegal search when the officer requested that additional files not viewed previously by
roommate or her boyfriend be opened to search for additional explicit images.
(Wilkinson (2008) 163 Cal.App.4th 1554, 1568.)
Example:
Computer repair tech found questionable images of girls on defendant's computer.
The police reviewed the images, which were not actual pornography, and asked the
technician if he could "search through and look at" anything else in the computer. He
found additional files that he loaded onto a flash drive. HELD: The warrantless
search of the flash drive was unlawful. (Michael E. (2014) 230 Cal.App.4th 261.)
C.
Agency/"Joint Operation"
If a private person conducts a search or seizure in response to your request, he becomes your
"agent," and the restrictions of the Fourth Amendment will apply. (Yackee (1984) 161
Cal.App.3d 843; see Wilkinson (2008) 163 Cal.App.4th 1554, 1572) The same thing can
happen--even without a direct request--if you encourage, instigate, or even passively permit a
private person to conduct an "illegal" search for your benefit and you make no effort to
protect the rights of the person being searched. (North (1981) 29 Cal.3d 509.)
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D.
5.17
Security Guards
The Fourth Amendment of the United States Constitution does not apply to private citizens
but, rather, only to government officers or their agents. (Skinner (1989) 489 U.S. 602, 614;
Jones (1998) 17 Cal.4th 329, 333.) Federal law, not state law, controls the question of who is
a government agent. (Christopher H. (1991) 227 Cal.App.3d 1567, 1573.)
Privately employed security guards or security officers are not government agents or actors,
and the Fourth Amendment does not apply to their actions. (Jones (1998) 17 Cal.4th 329,
333; Collins (9th Cir. 1989) 878 F.2d 1145, 1147; Francoeur (5th Cir. 1977) 547 F.2d 891,
893-894.)
Example:
K-Mart employees who used excessive force in searching and handcuffing a suspected
shoplifter did not violate the Fourth Amendment or the California Constitution.
(Jones (1998) 17 Cal.4th 329, 333.)
Example:
Shopping mall security guards were not acting as state officials or agents when they
stopped, searched, arrested and handcuffed two minors in the parking lot, even though
the guards were in uniform, shared their office with police, had access to police radios,
were regulated by the state, etc. (Christopher H. (1991) 227 Cal.App.3d 1567, 1573.)
Example:
Security guards of the Santa Cruz Boardwalk were not acting as state officials or
agents when they confronted the defendant smoking marijuana and drinking beer
under the boardwalk, handcuffed him, led him to the security office, called police, and
searched him. (Taylor (1990) 222 Cal.App.3d 612.)
Despite the fact that illegal searches and seizures by privately employed security guards will
not result in the suppression of evidence, it is still more prudent and professional for security
guards to examine and seize only items that are in plain view before summoning a police
officer, even though security guards presumably have the same limited power to search that a
merchant, library employee, or theater owner has under Penal Code section 490.5, subdivision
(f)(4). (Patel (1981) 121 Cal.App.3d Supp. 20.)
Once the suspect has been arrested, the peace officer who has or accepts custody of him may
search the arrestee and his immediate possessions for any item alleged to have been stolen.
(Pen. Code, § 490.5, subd. (f)(6); Lee (1984) 157 Cal.App.3d Supp. 9.)
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XIII.
SEARCH AND SEIZURE - MISCELLANEOUS
MAIL SEARCHES
"Mail" is a personal effect protected under the Fourth Amendment, and warrantless searches
of personal mail are presumptively unreasonable. (Jacobsen (1984) 466 U.S. 109, 114.)
Note:
The rule is different for mail coming into this country from another country.
For a discussion of incoming international mail, see Ch. 5-II-C.
However, mail may be detained upon reasonable suspicion, as long as the period of detention
is not excessive. (Van Leeuwen (1970) 397 U.S. 249, 252-253.) "A temporary detention of
mail for investigative purposes is not an unreasonable seizure when authorities have a
reasonable suspicion of criminal activity." (Lux (10th Cir. 1990) 905 F.2d 1379, 1382;
Lozano (9th Cir. 2010) 623 F.3d 1055, 1060-1061; Hernandez (9th Cir. 2002) 313 F.3d 1206,
1210.)
Federal courts have upheld the detention of first-class mail and packages sent via the U.S.
Postal Service (Van Leeuwen (1970) 397 U.S. 249; Lux (10th Cir. 1990) 905 F.2d 1379) and
private shipping services (Jacobsen (1984) 466 U.S. 109); to residences (Dennis (7th Cir.
1997) 115 F.3d 524; Daniel (5th Cir. 1993) 982 F.2d 146) and rented post office boxes
(Mayomi (7th Cir. 1989) 873 F.2d 1049); and even via Express Mail "[w]hen contraband
absolutely, positively had to get there overnight . . . ." (La France (1st Cir. 1989) 879 F.2d 1).
Police may seize parcels when they have probable cause to believe they contain contraband;
however, once mail is seized, you will need a warrant before opening it and examining its
contents. (Robey (2013) 56 Cal.4th 1218.) The sender's use of a false name and address
when mailing a package does not dispose of the warrant requirement. (Pereira (2007) 150
Cal.App.4th 1106, 1109 [officer could not cut open a teddy bear containing half a pound of
marijuana despite defendant's use of a fictitious name and address when he mailed the
parcel].)
Example:
Note:
A FedEx employee contacted the police when a parcel "reeking" of marijuana was
dropped off for shipment. Officers seized the parcel, confirmed that it reeked of
marijuana, took it back to the station, and opened it to find 444 grams of marijuana.
The California Supreme Court held that the odor allowed the warrantless seizure of
the parcel, but the Court declined to reach the question of whether the package could
be opened based solely on the undisputed and apparent odor of marijuana. (Robey
(2013) 56 Cal.4th 1218.)
Unfortunately, Robey is a very confusing opinion. On one hand the Court says
that it declines to reach the question of whether smell, alone, can justify
opening the package, but the opinion goes on and seems to condemn a "'plain
smell" argument. The opinion completely fails to address the fact that a parcel
that evidently contains contraband (contraband that is discernable without
opening the package) is not entitled to any rational expectation privacy.
Bottom line is that trial judges will most likely read the case as requiring that
law enforcement now obtain search warrants before examining the contents of
a parcel "absent unusual circumstances."
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5.19
The rules as to the outside, versus the inside, of mail differ. For example, a box holder at a
private mail facility does not have a reasonable expectation of privacy in the markings on the
outside of mail received by the private company and sorted into individual rented boxes.
(Reyes (2009) 178 Cal.App.4th 1183, 1192; see also Hinton (9th Cir. 2000) 222 F.3d 664,
673-676 [no reasonable expectation of privacy in the address on a package or anything else on
its outside, in a private post office box, or even in a parcel locker from which contents may be
moved at employees' discretion].)
Finally, the use of a narcotics detection dog to "sniff" a parcel does not implicate a legitimate
privacy interest. (Jefferson (9th Cir. 2009) 566 F.3d 928, 933.)
XIV. COAST GUARD SEARCHES
The U.S. Coast Guard may "make inquiries, examinations, inspections, searches, seizures,
and arrests upon . . . waters over which the United States has jurisdiction, for the prevention,
detection, and suppression of violations of laws of the United States." (14 U.S.C. § 89(a).)
Example:
The Coast Guard boarded a disabled sailboat to render medical aid to a passenger.
After towing the boat to safety, officers conducted a post-search-and-rescue (SAR)
boarding to ensure that the vessel was in compliance with federal regulations. The
officers found tar heroin in plain view during the search. HELD: The administrative
search of the boat was lawful. "Coast Guard boardings are an effective means for
policing compliance with safety and documentation regulations and as a practical
matter there are no feasible, less intrusive alternatives." The court noted that the postSAR search was conducted pursuant to standard procedure, not pursuant to an
individual officer's discretion. (Eng (2001) 94 Cal.App.4th 1184.)
Be aware, however, that according to the Ninth Circuit, "reasonable suspicion" is necessary to
justify any continued detention after a search and rescue operation is completed. (Thompson
(9th Cir. 2002) 282 F.3d 673, 677-678.)
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XV.
AGRICULTURAL/FISH AND GAME INSPECTIONS
A.
Agricultural Border Stations
Automobiles may be required to stop at agricultural border stations to determine whether the
car contains "pests." (Food & Agr. Code, §§ 5341, 5344-5346.) The officer may request that
the trunk be opened and may inspect any plant materials in plain view.
Example:
B.
Dickinson was stopped at the Needles Inspection Station. Because the car bore a
Michigan license, the inspection officer was concerned about the possibility of pests
and he asked to look in the trunk. Dickinson unlocked the trunk and exposed 200 to
300 pounds of marijuana. The evidence was admissible. (Dickinson (1980) 104
Cal.App.3d 505.)
Fish and Game Inspections
Fish and Game Code section 2012 authorizes California game wardens to stop persons who
are or recently have been fishing or hunting and demand that they display all the fish or game
caught or taken. The statute, by implication, authorizes vehicle stops for the purpose of
requiring that occupants who have been fishing or hunting display what they have caught or
taken. This section is valid under the Fourth Amendment as an administrative or special
needs search based on the state's interest in protecting and preserving wildlife for the benefit
of current and future generations. (Maikhio (2011) 51 Cal.4th 1074.)
In conducting the special needs analysis in Maikhio, the state Supreme Court noted that
regulations on hunting and fishing would be impossible to enforce if game wardens were not
allowed to conduct suspicionless stops and demands of hunters and anglers. Additionally, the
intrusions on persons who have voluntarily chosen to engage in these heavily regulated
activities and the minimal nature of the intrusions do not outweigh the critical need for
meaningful protection of the state's wildlife. (Maikhio (2011) 51 Cal.4th 1074.)
Note:
If someone who has been observed fishing or hunting denies having any game
in his possession, the observations in combination with the denial provides
probable cause to search a container and/or vehicle suspected of transporting
the game. (Maikhio (2011) 51 Cal.4th 1074, citing Ross (1982) 456 U.S. 798.)
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TABLE OF CONTENTS
Page
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
INTRODUCTION ............................................................................................................... 6.1
SEARCHES WITH A WARRANT VERSUS SEARCHES WITHOUT A WARRANT . 6.1
A. Legal Requirement ........................................................................................................ 6.1
B. Benefits of Obtaining a Search Warrant ....................................................................... 6.1
C. The "Good Faith" Exception - Leon.............................................................................. 6.1
THE ROLE OF LEGAL COUNSEL .................................................................................. 6.2a
JURISDICTION .................................................................................................................. 6.2a
DEFINITIONS .................................................................................................................... 6.2b
A. Search Warrant ............................................................................................................. 6.2b
B. Affidavit ........................................................................................................................ 6.2c
C. Affiant .......................................................................................................................... 6.2c
D. Magistrates .................................................................................................................... 6.2c
E. "Administrative" Warrants and Searches....................................................................... 6.2c
STATUTORY GROUNDS FOR SEARCH WARRANTS ................................................ 6.2d
PROBABLE CAUSE .......................................................................................................... 6.4
A. Generally ....................................................................................................................... 6.4
1. Specific Circumstances ........................................................................................... 6.4a
a. Narcotics............................................................................................................ 6.4a
b. "Medical Marijuana" ......................................................................................... 6.4b
c. Computers ......................................................................................................... 6.4b
d. Affidavits Containing National Firearms Act Data........................................... 6.4c
B. "Time" of Probable Cause and Anticipatory Warrants ................................................. 6.4c
INFORMANTS ................................................................................................................... 6.5
A. Generally ...................................................................................................................... 6.5
B. The "Basis of Knowledge" or "Personal Knowledge" Prong ....................................... 6.6
C. The "Veracity" (or "Reliability" or "Credibility") Prong ............................................. 6.6
1. Informants Who Are Deemed Reliable ................................................................... 6.6
a. Police Officers/"Official Channels" .................................................................. 6.6
b. "Citizen" Informants.......................................................................................... 6.6a
c. Business Records............................................................................................... 6.6b
2. Rendering Other Informants Reliable ..................................................................... 6.7
a. Prior Record of Providing Accurate Information .............................................. 6.7
b. Corroboration ................................................................................................... 6.8
c. Specificity of Information ................................................................................. 6.9
d. Statements Against Penal Interest ..................................................................... 6.9
e. Statements Under Oath...................................................................................... 6.10
D. Hearsay on Hearsay ...................................................................................................... 6.10a
E. Reliability Challenges (Rivas Motions) ........................................................................ 6.10b
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IX.
X.
XI.
STALENESS ....................................................................................................................... 6.10c
EXPERTISE, TRAINING AND EXPERIENCE .............................................................. 6.11
DESCRIBING THE PLACE TO BE SEARCHED ........................................................... 6.12
A. Premises ....................................................................................................................... 6.13
B. Vehicles ....................................................................................................................... 6.14
C. Persons .......................................................................................................................... 6.14a
D. Containers or "Other Places" ....................................................................................... 6.14a
E. Incomplete Description ................................................................................................ 6.14b
F. Address Unknown ........................................................................................................ 6.14b
G. Use of Photographs and Diagrams ............................................................................... 6.15
XII. DESCRIBING THE PROPERTY TO BE SEIZED .......................................................... 6.16
A. Examples of Overbroad Descriptions .......................................................................... 6.17
B. Examples of Sufficiently Specific Descriptions........................................................... 6.18
C. Scope ........................................................................................................................... 6.18a
XIII. MISSTATEMENTS AND OMISSIONS........................................................................... 6.18b
A. Misstatements and Omissions by the Informant .......................................................... 6.18b
B. Misstatements and Omissions by the Officer-Affiant ................................................... 6.18c
XIV. NIGHTTIME SERVICE .................................................................................................... 6.19
XV. CONFIDENTIAL INFORMANTS.................................................................................... 6.20
A. Disclosure for Purposes of Contesting the Search ....................................................... 6.20
B. Disclosure for Purposes of Trial.................................................................................... 6.20
C. Duty to Keep Track ....................................................................................................... 6.21
XVI. PRESENTING THE WARRANT AND AFFIDAVIT TO THE MAGISTRATE ............. 6.22
A. Technical Requirements ............................................................................................... 6.22
B. Questioning by the Magistrate ...................................................................................... 6.22
C. Information Not Contained in the Affidavit ................................................................. 6.22
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XVII. SERVICE OR EXECUTION OF THE WARRANT AND ITS RETURN ....................... 6.22a
A. Time Limits for Service and Return ............................................................................. 6.22a
1. Failure to Make Timely Execution ......................................................................... 6.22a
a. New Warrant ..................................................................................................... 6.22a
b. Resubmission of Expired Warrant .................................................................... 6.22a
2. Failure to Make Timely Return .............................................................................. 6.22a
3. Tracking Device Warrants ...................................................................................... 6.22b
B. Forcible Entry ................................................................................................................ 6.22b
C. Securing Premises Before a Warrant Is Obtained ......................................................... 6.23
1. Securing by Actual Entry ........................................................................................ 6.23
2. Securing by Preventing Others from Entering ........................................................ 6.24a
D. Presenting the Warrant to the Occupant ........................................................................ 6.24a
E. Searches and Seizures of Persons on the Premises ...................................................... 6.24b
F. Searching for the Specified Items ................................................................................. 6.24d
1. Seizing Unnamed Items Found in Plain View ........................................................ 6.25
2. Using Victims or Dogs to Aid in the Search ........................................................... 6.26c
G. Answering the Telephone/Beepers/Pagers .................................................................... 6.26c
H. Receipt for Seized Property........................................................................................... 6.26d
I. Special Masters ............................................................................................................. 6.26d
J. Continuation Searches ................................................................................................... 6.27
K. Duration of the Search................................................................................................... 6.27
L. Seizure of Business Records ......................................................................................... 6.27
XVIII. ALTERNATIVE METHODS OF PREPARING AFFIDAVITS AND
SEARCH WARRANTS ...................................................................................................... 6.27
A. Oral Affidavits............................................................................................................... 6.27
B. Search Warrants Via Electronic Access ........................................................................ 6.29
C. Telephonic Search Warrants ......................................................................................... 6.29
XIX. COURT ORDER FOR "AIDS" AND "HIV" TESTING .................................................... 6.31
A. Health and Safety Code Section 121050 et seq. ............................................................ 6.31
B. Penal Code Section 1524.1 ............................................................................................ 6.32
C. Penal Code Section 647f .............................................................................................. 6.32
D. Penal Code Section 7500 et seq. ................................................................................... 6.33
E. Welfare and Institutions Code Section 1768.9 .............................................................. 6.33
F. Penal Code Sections 1202.1 and 1202.6 ........................................................................ 6.33
G. Health and Safety Code Section 120260 et seq. ............................................................ 6.33
H. Miscellaneous ................................................................................................................ 6.33
XX. OTHER COURT ORDERS ................................................................................................ 6.34
A. Reader Privacy Act........................................................................................................ 6.34
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B. Pen Registers and "Traps" ............................................................................................. 6.34
1. Definitions ............................................................................................................... 6.35
2. Penal Code Section 638.52 Court Orders................................................................ 6.35
a. Oral Applications .............................................................................................. 6.38
b. Notice Provisions and Right to Challenge ....................................................... 6.38
3. Federal Law ............................................................................................................. 6.38a
XXI. THE FOURTH AMENDMENT PROTECTION ACT ...................................................... 6.39
XXII. CALIFORNIA ELECTRONIC COMMUNICATIONS PRIVACY ACT .......................... 6.39
A. Definitions ..................................................................................................................... 6.39
B. Suppression of Evidence Under CalECPA ................................................................... 6.41
C. Warrants, Orders, and Notifications .............................................................................. 6.41
1. Compelling Production of /Access to Electronic Communications Information .... 6.42
2. Accessing Electronic Device Information............................................................... 6.43
a. Emergency Access--Follow-Up Warrants and Destruction of Information...... 6.45
3. Notification Requirements ...................................................................................... 6.45
4. Issuance of the Warrant ........................................................................................... 6.46
D. Voluntary Disclosure..................................................................................................... 6.46
E. Subpoena Provisions ..................................................................................................... 6.47
F. Statutory Challenge to a Warrant or Court Order ......................................................... 6.48
G. Government Owned Electronic Devices ....................................................................... 6.48
H. Action by the Attorney General .................................................................................... 6.48
I. Additional Resources .................................................................................................... 6.48
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I.
6.1
INTRODUCTION
This chapter discusses probable cause, informants, and other legal and practical problems
involved in obtaining and executing search warrants.
II.
SEARCHES WITH A WARRANT VERSUS SEARCHES WITHOUT A WARRANT
A.
Legal Requirement
Although "the text of the Fourth Amendment does not specify when a search warrant must be
obtained," the U.S. Supreme Court "has inferred that a warrant must generally be secured" for
a search of private property absent one of the well-recognized exceptions (consent, search
condition, incident to arrest, exigent circumstances, vehicle, etc.). (King (2011) 563 U.S.
452, 459; Birchfield (2016) 136 S.Ct. 2160.) This warrant requirement also applies to
commercial property, except for any portion open to the public. (Doty (1985) 165
Cal.App.3d 1060.)
B.
Benefits of Obtaining a Search Warrant
Searches pursuant to a search warrant are presumed lawful; the burden is on the defendant to
prove illegality.
Additionally, if other grounds for searching are asserted and are later rejected by a reviewing
court, the warrant will validate the search.
Note:
The opposite can also be true. This is why it is a good practice to ask for
consent to search, even when you have a warrant. But ask before you show the
warrant. (Baker (1986) 187 Cal.App.3d 562.)
If the question of probable cause is close, but the police obtained a warrant, the courts will
generally rule for the prosecution. Courts should not invalidate the warrant by interpreting
the affidavit in a hypertechnical, rather than a commonsense, manner. (Gates (1983) 462 U.S.
213, 235-236; Lamas (1991) 229 Cal.App.3d 560, 567.)
C.
The "Good Faith" Exception - Leon
Under the "good faith" exception to the exclusionary rule created by the Supreme Court in
Leon (1984) 468 U.S. 897, evidence you obtain with a warrant (search or arrest) that a
reasonable officer objectively would believe is valid will be admissible in court even if the
warrant is later found to be invalid. (Herring (2009) ) 555 U.S. 135; Evans (1995) 514 U.S.
1; Bradford (1997) 15 Cal.4th 1229, 1291.) Your subjective beliefs will neither validate nor
invalidate a warrant. (Millender (2012) 132 S.Ct. 1235, 1248, fn. 6.) The fact that a neutral
magistrate issued a warrant "is the clearest indication that the officers acted in an objectively
reasonable manner." (Millender (2012) 132 S.Ct. 1235, 1245; Von Villas (1992) 11
Cal.App.4th 175, 218.)
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This exception will not apply--i.e., the evidence will still be suppressed--if (1) the issuing
magistrate was misled by information you knew or should have known was false; (2) the
magistrate completely abandoned his or her judicial (neutral and detached) role; (3) a well-trained
officer would have reasonably known the affidavit failed to establish probable cause; or (4) the
warrant was so deficient on its face that the executing officer could not reasonably presume it to
be valid. (Camarella (1991) 54 Cal.3d 592, 596; Lim (2000) 85 Cal.App.4th 1289, 1296; Luong
(9th Cir. 2007) 470 F.3d 898, 903--the affidavit contained "no appreciable indicia of probable
cause.") The good faith exception will not apply if a search warrant was issued based on
information that is patently "stale" because "it is not objectively reasonable for officers to believe
a search is legal where there are long, unexplained delays between the search" and the criminal
incidents described in the affidavit. (Hirata (2009) 175 Cal.App.4th 1499, 1508; Hulland (2003)
110 Cal.App.4th 1646.) However, "staleness" concerns whether evidence is likely to be
uncovered in the place searched--not merely the passage of time. (Lazarus (2015) 238
Cal.App.4th 734--murder was 23 years old but there was still reason to believe that evidence
would be found in suspect's residence). (See Ch. 6-IX.)
A common challenge to a warrant is that an objective and reasonable officer would have "known"
that the warrant was deficient. The Supreme Court has applied what amounts to strict liability
when the warrant, as opposed to the affidavit, fails to satisfy Fourth Amendment requirements.
(Groh (2004) 540 U.S. 551.)
Example:
An ATF agent prepared an application for a warrant to search a Montana ranch for
explosives and weapons detailed in the affidavit. The list of items was not incorporated
into the warrant by reference and the description of the property to be seized was
inadvertently omitted on the face of the warrant. The magistrate signed the warrant
despite this patent error. HELD: The Leon good faith exception did not apply to a plainly
invalid warrant that omitted a description of the items to be seized. The omission was not
a "mere technical mistake or typographical error." The Court did not disapprove crossreferencing other documents, but nothing in the warrant referenced the affidavit to provide
incorporation. (Groh (2004) 540 U.S. 551.)
The usual challenge is based on an insufficient affidavit, rather than the warrant itself, with the
question being whether an affidavit failed to establish probable cause. Because the affidavit has
to be pretty bad to meet this standard, the Leon "good faith" exception works to "save" cases
where the warrant is invalidated. (Mikesell (1996) 46 Cal.App.4th 1711, 1719; Christopher R.
(1989) 216 Cal.App.3d 901; see Millender (2012) 132 S.Ct. 1235, 1250 [§ 1983 case noting that
instances where the "magistrate so obviously erred that any reasonable officer would have
recognized the error" are rare].) Still the courts have warned that the Leon "good faith" exception
is not a "magic lamp" to rub whenever a warrant is challenged. (Hirata (2009) 175 Cal.App.4th
1499, 1508; Hulland (2003) 110 Cal.App.4th 1646, 1656.)
Note:
Having the warrant application reviewed by a deputy district attorney before
submitting it to the magistrate can provide an additional layer of protection under
Leon. The reasoning is that an officer who obtains this approval and the
magistrate's authorization could reasonably believe that the warrant, as well as the
scope of the warrant, was supported by sufficient probable cause. (Millender
(2012) 132 S.Ct. 1235, 1249-1250.)
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Example:
6.2a
A warrant for the use of a thermal imaging device lacked probable cause based on
insufficient corroboration of the anonymous informant's statements. Leon could not
be applied because an "objectively reasonable and well-trained officer" would have
known that the affidavit failed to establish probable cause. (Gotfried (2003) 107
Cal.App.4th 254, 266.)
Leon has been applied when the state of the law was confusing or "debatable" and the
confusion would make it difficult for an officer to know that probable cause was lacking.
Example:
Note:
III.
The probable cause supporting the warrant was lacking because the interlocking
information from three different unreliable informants did not combine to provide a
sufficient basis for the warrant. However, the "broad language" in the existing case
law "flatly suggested" that multiple unreliable informants could provide sufficient
corroboration of each other's assertions. Because the state of the law "presented a
debatable question as to the existence of probable cause," the officers could rely on
the magistrate's determination. (French (2011) 201 Cal.App.4th 1307, 1324.)
Leon is often a single-use antidote when an area of law is not yet resolved in
any published decision. The court may apply the Leon good faith exception in
a given case but pronounce that officers in all future cases would be charged
with knowledge of a change/clarification of law. (Pressey (2002) 102
Cal.App.4th 1178, 1191.)
THE ROLE OF LEGAL COUNSEL
Even though courts are supposed to accord due deference to search warrants, search warrants
can nevertheless be ruled invalid. Therefore, it is strongly suggested that all search warrants
be reviewed by legal counsel prior to presentation to a magistrate. The Supreme Court has
recognized that having a warrant application reviewed by a deputy district attorney helps
insulate the warrant from attacks based on insufficient probable cause. (Millender (2012) 132
S.Ct. 1235, 1249-1250.)
Where the affidavit is not based on the officer-affiant's personal knowledge, i.e., where
informants are involved, the aid of legal counsel may prove indispensable. The district
attorney's office should have prosecutors with special knowledge in this area.
IV.
JURISDICTION
It is permissible for a magistrate of one county to issue a warrant to search a place located in
another county if he has probable cause to believe the evidence sought relates to a crime
committed in his county and thus pertains to a present or future prosecution in that county.
(Dantzler (1988) 206 Cal.App.3d 289; Ruiz (1990) 217 Cal.App.3d 574.) A magistrate may
issue a warrant to search a person or property located in another county in cases involving
violations of Penal Code section 530.5 (identity theft) if the victim resides within the issuing
court's jurisdiction. (Pen. Code, § 1524, subd. (j).)
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Normally, deputies in the issuing county will be the ones authorized to conduct the out-ofcounty search. A magistrate cannot issue a search warrant for peace officers from a different
county to conduct a search in the magistrate's county, unless the local sheriff consents to the
search by the out-of-county officers. (Galvan (1992) 5 Cal.App.4th 866, 870-871.) Officers
from another jurisdiction may accompany the agency authorized by the court to conduct a
search. (Carrington (2009) 47 Cal.4th 145, 167.)
Example:
Los Altos officers obtained a warrant to search defendant's residence for evidence
relating to a Los Altos burglary. Palo Alto officers investigating an unrelated murder
accompanied the Los Altos officers to ensure that evidence relating to the homicide
would not be overlooked or disturbed. HELD: The search was not invalid as a result
of the Palo Alto officers' entry to look for evidence linked to the homicide. The entry
was valid even though the officers investigating the murder did not have sufficient
probable cause to obtain their own warrant. (Carrington (2009) 47 Cal.4th 145, 167.)
(Note: Good police work in this case led to plain view observations sufficient for the
Palo Alto officers to obtain a separate search warrant for evidence of the murder.)
Note:
If the property seized belongs to a "true stranger" to the criminal investigation
(i.e., someone with no connection to the issuing county), that party will be
entitled to seek the return of his property in the non-issuing county. (Fleming
(1981) 29 Cal.3d 698.)
V.
DEFINITIONS
A.
Search Warrant
"A search warrant is an order in writing, in the name of the people, signed by a magistrate,
directed to a peace officer, commanding him or her to search for a person or persons, a thing
or things, or personal property, and, in the case of a thing or things or personal property, bring
the same before the magistrate." (Pen. Code, § 1523.)
As stated in Penal Code sections 1529 and 1533, the following must appear in the warrant:
-
the names of all affiants;
-
the statutory grounds for issuance (Pen. Code, § 1524);
-
a description of the places and/or persons to be searched;
-
a description of the things or property to be seized;
-
an indication by the magistrate if nighttime search is authorized;
-
the magistrate's signature; and
-
the date issued.
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6.2c
Penal Code section 964 was enacted in 2004 to safeguard victim and witness "confidential
personal information" from appearing in any court document, including documents supporting
search or arrest warrants. "Confidential personal information" includes "address, telephone
number, driver's license or California Identification Card number, social security number, date of
birth, place of employment, employee identification number, mother's maiden name, demand
deposit account number, savings or checking account number, or credit card number." (Pen.
Code, § 964, subd. (b).) The courts in each county must establish procedures that protect
confidential information regarding any victim or witness.
B.
Affidavit
An affidavit is a separate document from the warrant. It is made under oath, states the "probable
cause" for the search and the statutory grounds for issuance, and describes the place or person to
be searched or searched for, and the property or things to be seized. (Pen. Code, §§ 1525, 1527.)
It may be oral as well as written. (Pen. Code, § 1526, subd. (b).) Typically only one affidavit
accompanies a search warrant, but more than one may be used.
Somewhere the affiant must swear to the truth of the facts provided to the magistrate in the
affidavit or statement of probable cause. (Leonard (1996) 50 Cal.App.4th 878.) In one published
case, the court of appeal has recognized that the officer's signed oath on the face of the search
warrant necessarily implies that the facts in the statement of probable cause are true, although the
better practice is to swear that the facts contained in the statement of probable cause are true and
avoid a "'technical' defect of form." (Hale (2005) 133 Cal.App.4th 942, 944.)
C.
Affiant
The affiant is the person who swears under oath that the information contained in the affidavit is
true. Usually it is a police officer, but anyone can be an affiant. (Bell (1996) 45 Cal.App.4th
1030, 1054-1055.)
D.
Magistrates
Only magistrates may authorize a search warrant. Magistrates are judges of the superior
courts, courts of appeal, and the state supreme court. (Pen. Code, § 808.) Commissioners,
judges pro tem, and referees are not magistrates.
E.
"Administrative" Warrants and Searches
Warrantless searches of certain closely regulated commercial premises (such as junkyards,
gun dealers, bars, taxi services, auto repair shops, or hazardous waste producers) are
permitted under the Fourth Amendment as "administrative searches" without probable cause.
(Burger (1987) 482 U.S. 691; Biswell (1972) 406 U.S. 311; Calvert (1993) 18 Cal.App.4th
1820, 1827; Los Angeles Chemical Co. (1990) 226 Cal.App.3d 703; Castillo (1992) 7
Cal.App.4th 836; Valenzuela (1999) 74 Cal.App.4th 1202; Potter (2005) 128 Cal.App.4th
611; see also Estes (1993) 14 Cal.App.4th 508 [warrantless searches of prison visitors'
vehicles]; Bulacan (9th Cir. 1998) 156 F.3d 963 [administrative nonconsensual examination
of bags or packages being carried into federal buildings].) Warrantless inspections of hotel
guest registries are not included in this exception. (Patel (2015) 135 S.Ct. 2443.)
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Administrative "inspection" warrants are not addressed in the Sourcebook. (See Code Civ.
Proc., § 1822.50 et seq.; Lepeilbet (1992) 4 Cal.App.4th 1208.)
VI.
STATUTORY GROUNDS FOR SEARCH WARRANTS
Penal Code section 1524, subdivision (a), lists the statutory grounds for issuance of a search
warrant. One or more of these grounds must be checked on the face of the warrant. Under
some of these grounds, such as (1), (3), (5), (7), (12), (13), (16), and (17), it is possible to
obtain a search warrant for a misdemeanor.
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of committing a felony.
(3) When the property or things are in the possession of any person with the intent to use it as
a means of committing a public offense, or in the possession of another to whom he or she
may have delivered it for the purpose of concealing it or preventing its being discovered.
(4) When the property or things to be seized consist of any item or constitute any evidence
that tends to show a felony has been committed, or tends to show that a particular person has
committed a felony.
(5) When the property or things to be seized consist of evidence that tends to show that sexual
exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual
conduct of a person under the age of 18 years, in violation of section 311.11, has occurred or
is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote computing service has
records or evidence, as specified in Section 1524.3, showing that property was stolen or
embezzled constituting a misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a misdemeanor public offense, or
in the possession of another to whom he or she may have delivered them for the purpose of
concealing them or preventing their discovery.
(8) When the property or things to be seized include an item or any evidence that tends to
show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular
person has violated Section 3700.5 of the Labor Code.
(9) When the property or things to be seized include a firearm or any other deadly weapon at
the scene of, or at the premises occupied or under the control of the person arrested in
connection with, a domestic violence incident involving a threat to human life or a physical
assault as provided in Section 18250. This section does not affect warrantless seizures
otherwise authorized by Section 18250.
(10) When the property or things to be seized include a firearm or any other deadly weapon
that is owned by, or in the possession of, or in the custody or control of, a person described in
subdivision (a) of Section 8102 of the Welfare and Institutions Code.
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(11) When the property or things to be seized include a firearm that is owned by, or in the
possession of, or in the custody or control of, a person who is subject to the prohibitions
regarding firearms pursuant to Section 6389 of the Family Code, if a prohibited firearm is
possessed, owned, in the custody of, or controlled by a person against whom a protective
order has been issued pursuant to Section 6218 of the Family Code, the person has been
lawfully served with that order, and the person has failed to relinquish the firearm as required
by law.
(12) When the information to be received from the use of a tracking device constitutes
evidence that (a) tends to show the commission of a violation of the Fish and Game Code or
Public Resources Code, (b) tends to show that a particular person has committed or is
committing a violation of the Fish and Game Code or Public Resources Code, or (c) will
assist in locating an individual who has committed or is committing a violation of the Fish
and Game Code or the Public Resources Code. "A tracking device search warrant issued
pursuant to this paragraph shall be executed in a manner meeting the requirements specified
in subdivision (b) of Section 1534."
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(13) When a sample of the blood of a person constitutes evidence that tends to show a
violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom
the sample is being sought has refused an officer's request to submit to, or has failed to
complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will
be drawn from the person in a reasonable, medically approved manner. This paragraph is not
intended to abrogate a court's mandate to determine the propriety of the issuance of a search
warrant on a case-by-case basis.
(14) The property or things to be seized are firearms or ammunition owned by, in the
possession of, or in the custody or control of a person who is the subject of a gun violence
restraining order, the person has been lawfully served with that order, and the person has
failed to relinquish the firearm as required by law. [Note that Penal Code section 1542.5
provides detailed protocols for seizing firearms and ammunition in the custody or control of a
person subject to a gun violence restraining order. Officers shall take custody of any firearm
or ammunition discovered pursuant to a consensual or other lawful search. For jointly owned
locations searched under a warrant, the firearm or ammunition shall not be seized if the items
are owned and lawfully possessed solely by the joint occupant and can be stored in a manner
denying access to the subject of the restraining order. A locked gun safe owned by a joint
occupant must be searched in the owner's presence and with consent or under a valid warrant
for the gun safe.]
(15) Beginning January 1, 2018, the property or things to be seized include a firearm that is
owned by, or in the possession of, or in the custody or control of, a person who is subject to
the prohibitions regarding firearms in Penal Code sections 29800 or 29805 and the court has
made a finding under Penal Code section 29810, subdivision (c)(3), that the person has failed
to relinquish the firearm as required by law.
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6.3
(16) When the items to be seized are controlled substances or a device, contrivance,
instrument, or paraphernalia unlawfully used for administering a controlled substance
pursuant to the authority described in Health and Safety Code section 11472.
(17) When a sample of a person's blood constitutes evidence that tends to show a violation of
Harbors and Navigation Code section 655, subdivision (b), (c), (d), (e), or (f) and the person
has refused an officer's request to submit to, or has failed to complete, a blood test as required
by Harbors and Navigation Code section 655.1, and the sample is to be drawn in a reasonable,
medically approved manner.
(18) When the property or things to be seized tend to show a violation of Penal Code section
647, subdivision (j)(1), (j)(2), or (j)(3). (Note that section 647, subdivision (j)(4), of the
invasion of privacy statute is not included as grounds for a search warrant.)
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VII.
PROBABLE CAUSE
A.
Generally
It is possible, of course, to have probable cause to search without having probable cause to
arrest, or vice versa, although often both will exist at the same time because they are both
based on the same evidence. (Henderson (9th Cir. 2001) 241 F.3d 638, 648.)
But no matter what the context is, "probable cause" always boils down to the same question:
does an officer possess enough factual knowledge or other reliable information so that it is
reasonable, in light of the officer's training and experience, to believe "X". (See Gorrostieta
(1993) 19 Cal.App.4th 71, 84; Temple (1996) 36 Cal.App.4th 1219, 1227-1228.)
In the search warrant context, "probable cause" means enough credible information to
reasonably provide a "fair probability" that the object you seek will be found at the place you
want to search. (Gates (1983) 462 U.S. 213, 236, 238; Bennett (1998) 17 Cal.4th 373, 391;
McDaniels (1994) 21 Cal.App.4th 1560, 1564; Lamas (1991) 229 Cal.App.3d 560, 567.)
"The task of the issuing magistrate is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, including the
'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place." (Gates
(1983) 462 U.S. 213, 238; Tuadles (1992) 7 Cal.App.4th 1777, 1783; Kraft (2000) 23 Cal.4th
978, 1040-1041.) It is reasonable for a magistrate to conclude that the logical place to look
for specific incriminating items is a suspect's residence. (Gonzalez (1990) 51 Cal.3d 1179,
1206; Carrington (2009) 47 Cal.4th 145, 163 [recognizing that this is particularly true when
the warrant is for stolen property]; Lee (2015) 242 Cal.App.4th 161, 173 ["it is not a great
leap to infer that the most likely place to keep a firearm is in one's home"].)
A magistrate is not allowed to issue a search warrant unless he or she concludes that the
affidavit contains "probable cause." (Pen. Code, § 1525.) Probable cause means more than
mere suspicion, but less than prima facie proof and less than a preponderance of the evidence.
(Gates (1983) 462 U.S. 213, 235; Harris (2013) 568 U.S. 237, 243-244; Tuadles (1992) 7
Cal.App.4th 1777, 1783; $48,715 (1997) 58 Cal.App.4th 1507, 1517.) The rules of evidence
that apply at a trial do not apply in determining probable cause to search. For example,
hearsay, privileged information, and other "inadmissible" information may be considered.
(Morgan (1989) 207 Cal.App.3d 1384.)
Furthermore, "the evidence must be seen and weighed as understood by those versed in the
field of law enforcement." (Von Villas (1992) 11 Cal.App.4th 175, 217.) This means that a
narcotics officer's training and experience must be considered and can make it reasonable, for
example, to conclude that contraband and other incriminating evidence might be found at a
drug dealer's residence (Ornelas (1996) 517 U.S. 690, 695-696; Sandlin (1991) 230
Cal.App.3d 1310, 1314; Gonzalez (1990) 51 Cal.3d 1179, 1206; Cleland (1990) 225
Cal.App.3d 388, 393) or in his automobile (McNabb (1991) 228 Cal.App.3d 462, 469;
Tuadles (1992) 7 Cal.App.4th 1777, 1785).
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6.4a
With regard to warrants authorizing the seizure of books, writings, or films, the Supreme
Court has squarely rejected the argument that a heightened probable cause standard applies
when the warrant involves materials protected by the First Amendment. (P.J. Video, Inc.
(1986) 475 U.S. 868, 875; see Giberson (9th Cir. 2008) 527 F.3d 882, 889--same standard for
computers that store First Amendment material.)
Finally, the Supreme Court has noted that officers "are under no constitutional duty to call a
halt to criminal investigation the moment they have the minimum evidence to establish
probable cause." (Hoffa (1966) 385 U.S. 293, 310; King (2011) 563 U.S. 452.)
1.
Specific Circumstances
a.
Narcotics
Example:
To an officer trained and experienced in clandestine drug labs, knowing that Smith
bought 400 pounds of freon (bringing his total to more than 2400 pounds in 15
months) under an assumed name and took it to a remote location provided probable
cause, that is, a "fair probability" that evidence of illegal methamphetamine
manufacturing would be discovered. The court noted that "innocent behavior will
often provide the basis for a showing of probable cause." (Glenos (1992) 7
Cal.App.4th 1201, 1206-1207.)
Example:
An anonymous informant reported that Bailey was selling cocaine and engaging in
prostitution at a named address, where the caller had seen heavy foot traffic. A
"citizen informant" also reported seeing many people visit the same apartment and
stay only briefly. The police corroborated that Bailey lived at the apartment. HELD:
The warrant was invalid. No criminal or even suspicious activity was observed.
Heavy foot traffic, without more, is insufficient. (Bailey (1992) 11 Cal.App.4th 1107;
compare Mikesell (1996) 46 Cal.App.4th 1711, 1717.)
Example:
Recently cut marijuana stems and leaves in a garbage can containing defendant's
residential trash established probable cause for warrant to search the residence.
(Thuss (2003) 107 Cal.App.4th 221, 235.)
Example:
Officers did not have probable cause to search defendant's residence following his
arrest for simple possession of a marijuana cigarette and 1.5 grams of
methamphetamine without any indicia that the narcotics were possessed for sale. A
warrant to search for additional narcotics cannot be based on the mere use and
possession of illegal drugs. (Pressey (2002) 102 Cal.App.4th 1178.)
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6.4b
b.
SEARCH WARRANTS
"Medical Marijuana"
Searches of premises occupied by a qualified patient under the Compassionate Use Act
(Health & Saf. Code, § 11362.5) present a special problem if the warrant is issued based on
illegal possession or cultivation of marijuana. If, however, a search warrant is issued based
on valid probable cause, officers are not required to abandon their search based on an alleged
"defense" to possession. (Fisher (2002) 96 Cal.App.4th 1147; but note that Health & Saf.
Code, § 11362.71, subd. (e), and § 11362.78 preclude the arrest of a patient or caregiver in
possession of specified quantities of marijuana upon proof of a valid identification card.)
Example:
Officers obtained a search warrant based on the observation of three marijuana plants
behind defendant's residence during a fly-over. Defendant showed the officers a
purported doctor's certificate for the medicinal use of marijuana. HELD: Fisher's
potential defense to the offense did not invalidate the probable cause on which the
warrant was issued. The court noted that although "there could be circumstances
where law enforcement, at the time they execute a warrant, are confronted with facts
that are so fundamentally different than those upon which the warrant was issued that
they should seek further guidance from the court, this is not one of them." (Fisher
(2002) 96 Cal.App.4th 1147.)
Example:
Defendant who had an indoor marijuana grow in his Pasadena garage claimed that the
search warrant affiant was required to include facts in the affidavit showing that the
marijuana was not being cultivated in conformance with the Compassionate Use Act
or the Medical Marijuana Program Act. HELD: Neither Act places an affirmative
duty on officers seeking a warrant to investigate a suspect's status as a qualified
patient or primary caregiver. (Clark (2014) 230 Cal.App.4th 490.)
As to dispensaries, operators of a storefront dispensary do not qualify as "primary caregivers"
under the Medical Marijuana Program based solely on a medical marijuana patient
designating them as a primary caregiver. A dispensary that merely provides walk-in
customers with medical marijuana, thus, could be the subject of a search warrant absent the
"'consistent' relationship necessary to achieve primary caregiver status." (Hochandel (2009)
176 Cal.App.4th 987, 1016.)
c.
Computers
Starting in 2016, the California Electronic Communications Act made sweeping changes to
the requirements and protocols for searching electronic storage devices and services. (See
Ch. 6-XXII, below.) CalECPA is prospective only and concerns the protocols that must be
followed to obtain search warrants and provide statutory notice for searches of, and access to,
electronic information and storage devices.
As to questions of probable cause, a warrant to search--versus seize--a computer could require
a different or augmented set of facts in the supporting affidavit, depending on the case. For
an excellent example and discussion of specific facts supporting a pre-CalECPA warrant to
search a computer, see Varghese (2008) 162 Cal.App.4th 1084, 1104-1106, and Nicholls
(2008) 159 Cal.App.4th 703.
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6.4c
The question whether a second warrant was required to search a computer or a computer
storage device, such as a smartphone, was addressed in Rangel (2012) 206 Cal.App.4th 1310,
1317. The Rangel court relied on federal court cases--Evers (6th Cir.2012) 669 F.3d 645 and
Gregoire (8th Cir.2011) 638 F.3d 962--that found that a second warrant was not necessary to
search a computer where the computer was identified as an item to be seized in the original
search warrant.
Example:
A search warrant issued in an apparently gang-related stabbing authorized the seizure
of any and all items of gang indicia and identified particular categories of gang-related
paraphernalia where indicia might be found. When Rangel was arrested, his cellular
smartphone was on a dresser within his reach. A detective seized the phone, and after
an interview with Rangel, turned on the phone and read a text conversation that
appeared to link Rangel to the assault. He also read all the other text message
conversations he could find and the contacts list. HELD: The search warrant
authorized the review of the text messages, which related to the gang-related crime.
(Rangel (2012) 206 Cal.App.4th 1310 [pre-CalECPA].)
Also remember that the nature of the crime is a relevant circumstance in determining whether
there is probable cause for a magistrate to issue a search warrant.
Example:
Nicholls, in jail on charges of lewd and lascivious conduct with his 10-year-old
daughter, told his mother (in a recorded conversation) that he had stored his computer
in her garage and he did not want anybody "messing with" it. Officers obtained a
search warrant for the computer based on the fact that Nicholls had stored his
computer in the garage attic and had instructed his mother not to let anyone mess with
it combined with specific "potent" facts concerning child molesters' possession of
child pornography drawn from the affiant's training, knowledge, and experience.
HELD: The affidavit established a fair probability that child pornography would be
discovered in the laptop computer. (Nicholls (2008) 159 Cal.App.4th 703.)
Finally, keep in mind that the search of data--versus the physical computer--may involve
different considerations. Computer users do not have a reasonable expectation of privacy in
electronic data that is not content. (Evensen (2016) 5 Cal.App.5th 1020, 1027, fn. 4--drawing
a helpful distinction between "content" and "record information.") Additionally, a warrant is
not required if there is no reasonable expectation of privacy in the "location" of the data.
Example:
Evensen used the eDonkey peer-to-peer network accessed through eMule that created
a shared folder where all downloaded files were automatically placed on his computer.
Using RoundUp software, police searched peer-to-peer file-sharing networks to
identify IP addresses associated with known digital files of child pornography. An IP
address that had downloaded child pornography was assigned to Evensen's mother.
HELD: Evensen's challenge to the use of RoundUp was rejected because he did not
have a reasonable expectation of privacy in a shared folder associated with the peerto-peer network. (Evensen (2016) 5 Cal.App.5th 1020.) (Note: Although this is a preCalECPA case, a warrant would not have been required to use the RoundUp software
because law enforcement would be included as an "intended recipient or a member of
the intended audience" (Pen. Code, § 1546, subd. (k)) in any peer-to-peer network.)
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d.
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Affidavits Containing National Firearms Act Data
The probable cause supporting a warrant cannot be obtained from information provided in
compliance with the National Firearms Act, 26 U.S.C. § 5848. Further, officers cannot rely
on the Leon good faith exception when a warrant contains information that could be traced
back to a violation of the confidentiality provisions of the NFA. (Sun (2007) 148 Cal.App.4th
374.)
B.
"Time" of Probable Cause and Anticipatory Warrants
The element of "time," that is, the relationship between your information and obtaining the
warrant, is always crucial to the concept of probable cause. The probable cause requirement
"looks to whether evidence will be found when the search is conducted." (Grubbs (2006) 547
U.S. 90, 95.) The affidavit, therefore, must provide probable cause to believe the evidence to
be seized will be found on the premises when the warrant is executed.
Anticipatory search warrants--warrants issued based on a sufficient showing that evidence
will be located at a specific place at some future time--are constitutional under the Fourth
Amendment. (Grubbs (2006) 547 U.S. 90, 94-96.) Most anticipatory warrants subject their
execution to some future "triggering condition," i.e., the delivery of contraband to a specific
address. The affidavit supporting an anticipatory warrant must show that (1) it is probable
that contraband will be at the described location when the warrant is executed and (2) if there
is a "triggering condition," there is a fair probability that the triggering event will occur.
(Grubbs (2006) 547 U.S. 90, 96.)
Example:
Grubbs purchased a videotape containing child pornography from a web site operated
by an undercover postal inspector, who arranged a controlled delivery of the package
to Grubbs' residence. Postal inspectors applied for an anticipatory warrant to be
executed after the parcel was delivered. The Supreme Court upheld the magistrate's
finding of probable cause: the delivery of the videotape prospectively established
probable cause for the search and the affidavit established probable cause to believe
that the triggering condition (the delivery of the tape) would be satisfied. (Grubbs
(2006) 547 U.S. 90.)
The Ninth Circuit had previously determined that the future "triggering" event or condition(s)
in an anticipatory warrant had to appear expressly on the face of the search warrant or in a
"sufficiently incorporated" attached affidavit. (Vesikuru (9th Cir. 2002) 314 F.3d 1116, 1122;
Hotal (9th Cir. 1998) 143 F.3d 1223, 1225-1227.) The Supreme Court rejected those
decisions, holding that the "particularity requirements" of the Fourth Amendment do not
require that a warrant include the conditions precedent to the execution of the warrant.
(Grubbs (2006) 547 U.S. 90, 98.)
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VIII.
INFORMANTS
A.
Generally
6.5
Frequently, the affidavit contains information the affiant obtained from another person. The
provider of such information is considered an "informant"--regardless of whether he or she is
an underworld figure, a crime victim, a suspect, another officer, or a police dispatcher.
Because the information from any type of informant is necessarily "hearsay" when it appears
in the affidavit, the courts developed thresholds that must be met before a magistrate can
consider the information in deciding probable cause. Historically, the information could be
used only if the affidavit showed (1) that the informant spoke from personal knowledge
(known as the "basis of knowledge" test) and (2) that the informant was reliable (known as
the "veracity" test). Together, these two requirements governing informant hearsay
information were known as the "two-pronged" test of Aguilar (1964) 378 U.S. 108 and
Spinelli (1969) 393 U.S. 410.
In 1983, the United States Supreme Court abandoned the "two pronged" test of Aguilar and
Spinelli in favor of a more relaxed "totality of the circumstances" analysis that traditionally
has governed probable cause determinations. (Gates (1983) 462 U.S. 213, 238.) Under this
federal standard, the magistrate is to consider everything, including the "basis of knowledge"
and "veracity" of persons supplying hearsay information, and then make a practical, commonsense decision as to whether all the circumstances establish a "fair probability" that
contraband or evidence of a crime will be found in a particular place. (Kraft (2000) 23
Cal.4th 978, 1041; Clark (9th Cir. 1994) 31 F.3d 831, 834.) In other words, under Gates,
magistrates now have more latitude than before to draw reasonable inferences from the
affidavit and are not confined to the more rigid requirements of Aguilar and Spinelli. The
failure to satisfy the previous requirements of one "prong" or the other will no longer
necessarily invalidate the warrant. (Upton (1984) 466 U.S. 727; Foster (1988) 201
Cal.App.3d 20.) California follows the Gates "fair probability" standard. (Kraft (2000) 23
Cal.4th 978, 1041; Costello (1988) 204 Cal.App.3d 431.)
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B.
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The "Basis of Knowledge" or "Personal Knowledge" Prong
Under this requirement, you must state facts--not conclusions--that show the basis for the
informant's information, i.e., how he knows what he told you. The requirement is normally
met by personal knowledge, i.e., by stating in the affidavit that the informant personally saw
(or heard, smelled, etc.) the information that he relates. (See French (2011) 201 Cal.App.4th
1307, 1317-1318.)
Example:
C.
"Informant X has told your affiant that heroin is located at . . ." would be insufficient.
The correct way would be, "Informant X has told your affiant that he observed heroin
at . . . ."
The "Veracity" (or "Reliability" or "Credibility") Prong
Under this requirement, you must supply the magistrate with enough underlying factual
information in the affidavit to demonstrate that the informant is credible, i.e., that it is
reasonable to believe him because he is telling the truth.
1.
Informants Who Are Deemed Reliable
Certain kinds of informants are automatically considered to be reliable by virtue of their
position or status.
a.
Police Officers/"Official Channels"
Police officers and other law enforcement personnel (such as a police dispatcher) are
considered reliable because of their occupation. (Hill (1974) 12 Cal.3d 731.) Information
received through this type of "official channels"--assuming it is accurate--may normally be
used to support probable cause to search (Ramirez (1983) 34 Cal.3d 541) or to arrest (Alcorn
(1993) 15 Cal.App.4th 652, 655). Thus, information that the affiant has obtained from
another officer will automatically be considered reliable (Gonzalez (1990) 51 Cal.3d 1179,
1207), although the basis and extent of the "original" officer's information may still be
challenged later in court (Ford (1984) 150 Cal.App.3d 687, 697-698).
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b.
6.6a
"Citizen" Informants
A "citizen" informant is generally a victim or an eyewitness to a crime--someone who gives
information to the police out of motives of good citizenship or under other circumstances that
do not cast doubt upon its truthfulness. (Scott (2011) 52 Cal.4th 452; Brueckner (1990) 223
Cal.App.3d 1500, 1504; Christopher R. (1989) 216 Cal.App.3d 901; Huston (1989) 210
Cal.App.3d 192; Mueller (1985) 163 Cal.App.3d 681.) Such information is "automatically"
reliable. (Lee (1987) 194 Cal.App.3d 975, 982.) Generally, as to crime victims, additional
information concerning their good faith or honesty is not required. (Wood v. Emmerson
(2007) 155 Cal.App.4th 1506, 1522.)
If you are relating information from this type of informant, do not just call him or her a
"citizen informant" without setting forth the facts from which the magistrate can conclude that
person falls in this category. (Smith (1976) 17 Cal.3d 845.) For example, state that the
individual gave his or her name and address (these do not have to be revealed--Lombera
(1989) 210 Cal.App.3d 29), how you (the affiant) came into contact with the individual, what
the individual's reason is for giving information to the police, etc. Without such information,
the informant will be considered an anonymous informant, and you will need corroboration to
establish his or her reliability. (Rooney (1985) 175 Cal.App.3d 634.)
Example:
An affidavit was based on information from a citizen informant whose identity was
not revealed. The officer recited that he had met with the informant and "found
him/her to be a law abiding citizen with no past criminal record or current cases
pending" with the officer's department and that the informant had "seen cocaine and is
familiar with the sale, packaging and appearance of cocaine." The affidavit further
recited: "I believe the information supplied by the citizen informant in this case to be
reliable for the following reasons: (1) the CI appears to be an honest, law-abiding
citizen whose only motive for providing me with this information is to prevent this
large amount of cocaine from illegally being distributed and used. This citizen
informant does not have any criminal history and is solely motivated to reveal this
information out of good citizenship, and (2) though the CI is not him/herself a user of
cocaine, he/she has had sufficient personal experience to be able to recognize cocaine,
the methods by which large amounts of the drug are packaged, and the methods that
cocaine dealers use to store and distribute cocaine. I have determined this through my
interview of the CI and personal knowledge of the CI's background, though additional
information would, if stated herein, tend to show the identity of the Citizen
Informant." The court upheld the affidavit. (Lombera (1989) 210 Cal.App.3d 29.)
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Note that an informant could begin as an anonymous informant, i.e., making an anonymous
9-1-1 call, and then develop into a citizen informant for whom corroboration is not necessary.
Example:
c.
Riverside Police received a call from an anonymous informant with information about
a rapist who was still at large, including where he worked. When detectives went to
the reported workplace, they interviewed a man who admitted he had made the
anonymous call. HELD: The witness was a reliable citizen informant after he
admitted he was the caller. On the facts presented in the pretrial hearing, there was
nothing indicating that the informant's motive in calling the police was anything other
than good citizenship. (Scott (2011) 52 Cal.4th 452.)
Business Records
Information obtained from the Department of Motor Vehicles, Pacific Gas and Electric
Company, the telephone company, etc., is often helpful in an affidavit to show ownership or
occupancy. If you obtain this kind of business record information from the appropriate
authorities, no further evidence of reliability is necessary. (Ruster (1976) 16 Cal.3d 690.)
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2.
6.7
Rendering Other Informants Reliable
Other types of informants are not inherently reliable and their credibility must be established
in the affidavit. So-called "classic informants" fall in this category. "[E]xperienced stool
pigeons or persons criminally involved or disposed are not regarded as 'citizen-informants'
because they are generally motivated by something other than good citizenship." (Smith
(1976) 17 Cal.3d 845.) "Such persons frequently have criminal records and a history of
contact with the police. Often they are free only on probation or parole or are themselves the
focus of pending criminal charges or investigations." (Kurland (1980) 28 Cal.3d 376.)
Anonymous informants are another type whose reliability must be established. (Clark (9th
Cir. 1994) 31 F.3d 831, 834.)
On the other hand, you should bear in mind that even an accomplice to the crime, who has
been caught, charged, and decides to cooperate with the police, can give "reliable"
information, where the information is "detailed, corroborated, and self-incriminatory."
(Bowman (9th Cir. 2000) 215 F.3d 951, 965.)
Note:
An informant need not be identified by name in the search warrant affidavit,
but it should be made clear that the officer knows his or her identity.
When you are dealing with a classic informant, anonymous informant, or other informant
whose reliability is not presumed, there are several methods you can use to establish his
trustworthiness.
a.
Prior Record of Providing Accurate Information
This method usually consists of reciting at least one prior occasion where information from
this informant has resulted in a valid arrest, holding to answer, or conviction. "It is sufficient
that the prior information was accurate or was 'of such substance as to cause a reasonable
person to conclude that it is reliable.'" (Dumas (1973) 9 Cal.3d 871; Swayze (1963) 220
Cal.App.2d 476.) Absolute prior accuracy is not required, at least under Gates. Arrests need
not have resulted in convictions in order to establish reliability. (Mayer (1987) 188
Cal.App.3d 1101.) In addition, it is not necessary that the informant previously worked with
you personally; official documentation of his efforts for other officers will suffice. (Lopez
(1986) 181 Cal.App.3d 842; Mayer (1987) 188 Cal.App.3d 1101.)
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If the informant is reliable because of information previously provided, it is not necessary for
the information to also be corroborated (although it never hurts). (Hansborough (1988) 199
Cal.App.3d 579.)
But keep in mind that it will not be enough to assert that an informant is a "confidential
reliable informant" without facts in the affidavit establishing reliability. (French (2011) 201
Cal.App.4th 1307, 1317.)
b.
Corroboration
Ordinarily, the unverified story of an untested informant is not sufficient for the issuance of a
search warrant. (Maestas (1988) 204 Cal.App.3d 1208.) However, it may still be reasonable
to rely on the information if it can be sufficiently corroborated. (Rochen (1988) 203
Cal.App.3d 684; Clark (1992) 3 Cal.4th 41, 141.) In other words, probable cause based on an
informant's tip is evaluated under a "totality-of-the-circumstances" test. (Breuckner (1990)
223 Cal.App.3d 1500, 1504; Bishop (9th Cir. 2001) 264 F.3d 919, 925.)
Typically, corroboration comes through police investigation. (Benjamin (1969) 71 Cal.2d
296.)
Example:
Battered wife of burglary suspect told police that her husband had referred to a
burglary on September 4 or 5 involving $1,200 or $1,300, that his friend had boasted
it had involved "Taco Bell," that both men had mentioned doing "another job" on
October 26, and that she had seen them cutting up a safe, part of which she brought
with her. Police confirmed a Taco Bell burglary on September 4 involving $1309 and
another on October 26. One of those managers identified the safe fragment as similar
to the one stolen from his restaurant. The court held that the wife's information had
been sufficiently corroborated and could be considered reliable so as to support a
warrant for the suspect's residence. (Zepeda (1980) 102 Cal.App.3d 1.)
Earlier California cases required that "in order for corroboration to be adequate, it must
pertain to defendant's alleged criminal activity; accuracy of information regarding the suspect
is insufficient." (Fein (1971) 4 Cal.3d 747.) However, the present rule is less stringent. "The
relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of
suspicion that attaches to particular types of non-criminal acts." (Gates (1983) 462 U.S. 213.)
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In other words, corroboration based on recent lawful activity can suffice as long as, when
viewed in context, the activity appears suspicious or has criminal overtones. (Costello (1988)
204 Cal.App.3d 431; see also Clark (1992) 3 Cal.4th 41, 141; and Mikesell (1996) 46
Cal.App.4th 1711, 1718.)
For example, watching a suspected meth manufacturer buy 400 pounds of freon and drive it
to a remote location, although legal, is suspicious and would tend to corroborate information
from an informant that the suspect was operating a clandestine laboratory. (Glenos (1992) 7
Cal.App.4th 1201, 1207.)
Courts will also often find corroboration where the informant has predicted certain behavior
in the future, and then the behavior takes place, particularly if the future behavior relates to
crimes. (White (1990) 496 U.S. 325; Pinela-Hernandez (9th Cir. 2001) 262 F.3d 974, 978;
Mendonsa (9th Cir. 1993) 989 F.2d 366, 368-369.) The strength of this type of corroboration,
however, will depend largely on how detailed the prediction was and/or how easily the
predicted activity would be to foresee. (Bailey (1992) 11 Cal.App.4th 1107, 1112-1113.)
On the other hand, if you can corroborate only "innocent static details" or just "pedestrian
facts," that is, non-suspicious things which would be apparent to any casual observer (for
example, that a described individual is sitting in a described vehicle at an indicated location),
or which are readily ascertainable (such as confirming who lives at a certain address, or who
owns a certain vehicle), the courts will generally conclude that probable cause is lacking.
(French (2011) 201 Cal.App.4th 1307, 1320; Murtha (1993) 14 Cal.App.4th 1112, 1122;
Bailey (1992) 11 Cal.App.4th 1107, 1113; Clark (9th Cir. 1994) 31 F.3d 831, 835; Mendonsa
(9th Cir. 1993) 989 F.2d 366, 369.)
Sometimes, multiple tips from different untested informants may be viewed as corroborating
each other, for instance, where they provide similar, overlapping, or "interlocking"
information. (Feeney (9th Cir. 1993) 984 F.2d 1053, 1056; Sheridan (1969) 2 Cal.App.3d
483, 487-489; Yarbrough (9th Cir. 1988) 852 F.2d 1522, 1533.)
Even in this situation, however, independent corroboration by the police of something
suspicious or incriminating will usually be required. (Bailey (1992) 11 Cal.App.4th 1107;
Feeney (9th Cir. 1993) 984 F.2d 1053.) If multiple unreliable informants' statements
interlock only on pedestrian details, the corroboration will be insufficient. (French (2011)
201 Cal.App.4th 1307.) Similarly, uncorroborated information from multiple but totally
anonymous informants will probably not be viewed as providing probable cause. (Higgason
(1985) 170 Cal.App.3d 929; Terrones (1989) 212 Cal.App.3d 139.)
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Example:
In late 2009, on the way to jail, an arrestee told a Eureka police officer that a person
named Robert had sold heroin to his wife and he showed him Robert's house on
Summer Street and the truck he drove. The truck was registered to Robert French at
that address. In February 2010, a person described as a "confidential reliable
informant" told officers that Maria Camacho and her boyfriend Robert who lived on
Summer Street were selling heroin and that Robert drove a black truck. Two weeks
later, a second person labeled as a "confidential reliable informant," who had
previously provided "information" to law enforcement that had been corroborated and
used in criminal cases, said that Camacho and her boyfriend "Ron" were selling heroin
and methamphetamine out of their house on Summer Street and that Ron drove a
black truck. The same person reported that Robert and Maria were still selling drugs
because people came to the house, went into another room with them, and left a short
time later. Maria Camacho had multiple previous arrests and convictions for
transportation and possession of controlled substances for sale. These facts were the
basis for a warrant to search the Summer Street residence and defendant's black truck.
HELD: The probable cause was insufficient to support the warrant. The police did
not corroborate any of the significant details regarding defendant's activities.
"[A]bsent any such corroboration, probable cause cannot be found by adding together
the undetailed, hearsay, and unreliable assertions of the arrestee informant and the
unreliable and conclusory assertions of CRI–1 and CRI–2. Even considered together,
the various informants' statements failed to 'provide the magistrate with a substantial
basis for determining the existence of probable cause.'" (French (2011) 201
Cal.App.4th 1307, 1322-1323.)
Example:
An anonymous informant reported that Bailey was selling cocaine and engaging in
prostitution at a named address, where the caller had seen heavy foot traffic. A
"citizen informant" (therefore reliable) also reported seeing many people visit the
same apartment and stay only briefly. The police corroborated that Bailey lived at the
apartment. HELD: The warrant was invalid because the affidavit did not contain
probable cause. No criminal activity was observed. "Heavy foot traffic," without
more, is insufficient. The police should have done additional investigation (such
running a records check, noting the nature of the neighborhood, observing suspicious
activity by the "buyers," making an attempted undercover buy, etc.) (Bailey (1992) 11
Cal.App.4th 1107.)
Example:
Police had information from various informants, some of it a few years old, that
defendants were selling drugs from their home and that there was heavy traffic there.
Police surveillance confirmed an unusual amount of traffic at the rural residence late
in the evening, i.e., numerous cars pulling in, with the visitors staying only a few
minutes. HELD: The warrant was good. In contrast to Bailey and Higgason, the
officers here independently corroborated the informants' claims of unusual heavy
traffic. (Mikesell (1996) 46 Cal.App.4th 1711, 1717.)
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Example:
c.
6.9
An untested informant told police that "Larry," who lived somewhere in Marin
County, with a certain telephone number, was allegedly going to make a delivery of
marijuana to San Francisco at a certain time and date. The informant also provided a
description of "Larry," his car, and where the marijuana would be located. The
informant's tip was corroborated by police surveillance of the defendant's car leaving
Marin County at roughly the designated time and driving to San Francisco, by the
suspect's name (Lawrence), by his physical resemblance to the suspect, and by his
possession of a shoulder bag, as described. However, since nothing the police
discovered "was even remotely suspicious," there was no probable cause for a warrant
or arrest. (Lissauer (1985) 169 Cal.App.3d 413; Costello (1988) 204 Cal.App.3d
431.)
Specificity of Information
It is possible for an informant to demonstrate his credibility (i.e., to establish the required "fair
probability" that he is telling the truth) simply by giving a large amount of detailed, first-hand
information.
For example, one case upheld a warrant which was based on uncorroborated information from
an accomplice (the co-perpetrator of a robbery) and the accomplice's girlfriend. (Foster
(1988) 201 Cal.App.3d 20.) This represents an extremely important potential tool for law
enforcement.
d.
Statements Against Penal Interest
Where an informant, knowingly or unknowingly, gives information which subjects him to
criminal prosecution, his statement is said to contain an internal guarantee of veracity. This is
so because people typically do not falsely implicate themselves in criminal activities. Such
statements are therefore considered trustworthy. (Skelton (1969) 1 Cal.3d 144; Tarazon (9th
Cir. 1993) 989 F.2d 1045, 1049.)
Similarly, even if the statement incriminates someone other than the informant, it is still
considered reliable if the declarant did not know he was talking to a police officer. (Hall
(1974) 42 Cal.App.3d 817; Ming (1970) 13 Cal.App.3d 206.)
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Statements Under Oath
If an informant cannot be shown credible or his information reliable upon any of the
foregoing tests, he may be brought before the magistrate to swear under oath that he is telling
the truth. In this way the magistrate can assess, just as with any other witness, the informant's
veracity. (Skelton (1969) 1 Cal.3d 144; Goldberg (1984) 161 Cal.App.3d 170; Pen. Code, §
1526.)
Note:
This is an excellent but underused procedure which you should consider using
more often.
In using this alternative procedure of taking the informant directly to the issuing magistrate,
the following steps are suggested.
(1)
The statement of the informant should be set forth in the form of an affidavit on a
separate sheet of paper. It should be headed "Statement of (informant's name)." The
statement should include the identity of the informant, the information known to him,
and the manner in which he obtained his information. It should be as detailed and
factual as possible, and demonstrate that he is speaking from personal knowledge. It
should be written in the first person, i.e., "I saw . . .," and marked "Exhibit 1."
(2)
The police officer-affiant will prepare his own affidavit in support of the warrant. He
will attach and incorporate by reference the prepared statement of the informant
(Exhibit 1) and describe the manner in which he obtained that information from the
informant.
(3)
Both the affiant and the informant will then appear before the magistrate. The
magistrate should read the entire affidavit, including the informant's statement. The
informant should be introduced to the magistrate. The magistrate should be permitted
to question the informant under oath, if he wishes, and make additions or corrections
to the informant's statement. The informant should then write in his own hand under
his statement, "I swear under penalty of perjury that this statement is true." He should
then affix his signature and the date.
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6.10a
Underneath the informant's signature, the magistrate should write, "I have examined
(informant's name) under oath and find him to be truthful." This should be followed
by the magistrate's signature and the date.
(4)
The name of the "informant-affiant" should also be inserted on the search warrant
along with the officer-affiant's name. Following the example set forth in Penal Code
section 1529, the search warrant should name on its face "every person whose
affidavit has been taken." However, if it is desired to keep the name of the
"informant-affiant" confidential until after the warrant is returned and becomes public
record, then the "informant-affiant's" name need not be placed on the face of the
search warrant. (Sanchez (1972) 24 Cal.App.3d 664.)
(5)
The other forms should be sworn to and signed by the affiant and the magistrate in the
usual manner.
It is helpful to advise the informant, prior to his appearance before the magistrate,
about what may be required of him.
Note that the questioning of the informant by the magistrate is not part of the affidavit.
The questioning is only for the purpose of allowing the magistrate to determine if the
informant is truthful. If the informant says something during the questioning that
should be included as part of the affidavit, then that information should be added to
the informant's written statement. A conversation between the magistrate and the
informant is not considered as a substantive part of the affidavit unless it is written
down so as to become part of the signed affidavit.
D.
Hearsay on Hearsay
If the affiant is relating information received from an informant who is in turn relating
information from a third party, this information, while useful, will not establish probable
cause unless the reliability and personal knowledge tests are satisfied as to the informant and
the third party. Thus, if the affiant is told by another officer that the informant told him that
heroin was at a particular address, even though the nonaffiant officer is reliable and
personally heard the information, the original informant's veracity and personal knowledge
must also be demonstrated. (Price (1970) 1 Cal.3d 836; Love (1985) 168 Cal.App.3d 104.)
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E.
SEARCH WARRANTS
Reliability Challenges (Rivas Motions)
Often, you will attempt to establish an informant's reliability through his past performance,
for example, by swearing in the affidavit that during the previous six months, he furnished
you information that led to the arrest of two persons and, another time, the seizure of drugs.
This technique may result in a "Rivas motion" to establish the accuracy of your information,
i.e., the reliability of the informant. (Rivas (1985) 170 Cal.App.3d 312.)
In Rivas, the court ruled that the defense is entitled to "discover" the documents pertaining to
the informant's past performance (such as police reports, his "rap sheet," cases pending
against him, promises made, etc.) and established an in-camera review procedure so that the
trial judge can protect the informant's identity.
A few years later, in Luttenberger (1990) 50 Cal.3d 1, the California Supreme Court
discussed Rivas at length and added some requirements of its own. It held that:
-
Proposition 8 does not apply, and neither does Franks v. Delaware (1978) 438 U.S.
154, because the issue here is "discovery," not the exclusion of evidence;
-
the concept of an in-camera screening process is a good one, but defense counsel must
make a preliminary or threshold showing;
-
specifically, in order to bring this type of motion, the defense must first offer
evidence, preferably by affidavit, casting some "reasonable doubt" on the veracity of
material statements made by the affiant;
-
the defense should specify the information sought, the basis for believing it exists, and
the purpose for which it is sought;
-
the defense need not show that the alleged inaccuracies resulted from "bad faith" but
must raise a substantial possibility that the allegedly untrue statements were material
to the probable cause determination;
-
once the required preliminary showing has been made, the trial court should conduct
an in-camera examination (or hold an evidentiary hearing) and decide if the
allegations are correct;
-
if the court finds the allegations to be supported, it should order disclosure of the
documents, but excise all information that could reveal the informant's identity;
-
if the court finds the allegations to be unsupported, it should simply inform counsel of
its conclusion, but not hand over any of the documents.
Of course, this entire procedure can be avoided by establishing your informant's reliability in
some way other than past performance.
Note:
See Sandlin (1991) 230 Cal.App.3d 1310, 1316, for a discussion of the
difference in the showing necessary for this type of "discovery" motion
relating to information about an informant, as opposed to the more substantial
showing necessary under Franks to obtain a hearing to attack the warrant on
the ground that there was official misconduct in its preparation.
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See also Box (1993) 14 Cal.App.4th 177, 183-186, and Hobbs (1994) 7 Cal.4th 948, which
reviews Luttenberger and discusses the relationship between (1) the People's right to protect
the identity of a confidential informant and (2) a defendant's right to discover information that
she might use to challenge the search warrant when the affidavit has been sealed.
IX.
STALENESS
There is no bright-line rule defining when information supporting an affidavit is stale.
(Bryant (2014) 60 Cal.4th 335, 370; Carrington (2009) 47 Cal.4th 145, 163; Stipo (2011) 195
Cal.App.4th 664, 672.) What is required are facts included in the affidavit making it
reasonable to believe the material sought is still on the premises. (McDaniels (1994) 21
Cal.App.4th 1560, 1564; see Carrington (2009) 47 Cal.4th 145, 164.)
Usually, this requirement is satisfied by including relatively "recent" factual information in
the affidavit, that is, facts close in time to the date the warrant is issued. In some situations,
even a brief delay can render the warrant "stale," whereas in other situations even a relatively
long delay may not be fatal. (See Alexander (1973) 9 Cal.3d 387, 393.) In determining
whether information is "stale," courts will consider (1) the facts of the case, (2) the nature of
the unlawful activity (continuous or ongoing activity makes promptness less urgent), and
(3) the type of property for which authority to search is sought (a small, consumable amount
of drugs requires swifter action than stolen property or weapons generally would). (Wilson
(1986) 182 Cal.App.3d 742.)
Some state courts have determined that evidence more than four weeks old is generally "too
stale" for the magistrate to issue a warrant. (Hulland (2003) 110 Cal.App.4th 1646, 1655
[single sale of narcotics]; Hemler (1975) 44 Cal.App.3d 430, 434 [single sale of narcotics].)
However, in a case involving a search for unrecovered stolen property, information that was
two months old was not stale. (Carrington (2009) 47 Cal.4th 145, 164.)
Greater lapses between the dates of the illegal activities and the date the warrant is requested
are permitted when the investigation relates to a "continuing criminal business" or an
"ongoing operation." (Jones (2013) 217 Cal.App.4th 735, 742; see Gibson (2001) 90
Cal.App.4th 371--six-month-old information relating to the search of a "madam's" residence
was not "stale.") For example, regarding drug trafficking, probable cause may continue for
several weeks or months after the last reported instance. (Pitts (9th Cir. 1993) 6 F.3d 1366,
1369.) Courts recognize that firearms, ammunition, and related equipment are likely retained
long after the crime has been committed (Bryant (2014) 60 Cal.4th 335, 369; Lazarus (2015)
238 Cal.App.4th 734) and certain supplies acquired to commit a crime will be kept for "some
period of time" (Crews (9th Cir. 2007) 502 F.3d 1130, 1140; see Fries (9th Cir. 2015) 781
F.3d 1137--repeated vandalisms involving the use of motor oil, animal carcasses, and
chemical substances). Courts also recognize the "longevity" of data storage on computers.
(Lazarus (2015) 238 Cal.App.4th 734.) Further, otherwise "stale" information remains
relevant when it is backed up by more recent information reflecting that the same type of
illegal activity may still (or again) be going on. (Mikesell (1996) 46 Cal.App.4th 1711,
1718.)
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6.10d
SEARCH WARRANTS
Example:
School officials identified the IP address of a hacker who had broken into the school
district computer network and accessed employee payroll and confidential data. In
January 2008, investigators obtained a warrant for the hacker's IP subscriber
information, which they received from the Internet service in May 2008. In August
2008, investigators applied for a warrant to search the hacker's residence. HELD:
The probable cause supporting the warrant was not "stale." It was reasonable to
believe that the computer equipment and evidence of identity theft would still be in
the hacker's residence. The IP provider had verified that the hacker had maintained
his subscription and IP address unique to his specific computer. The investigation was
kept confidential, so the hacker would not have had a reason to destroy evidence in his
computer hard drive. Also, the investigation involved multiple suspects, adding to the
reasonable delay in obtaining the second warrant. (Stipo (2011) 195 Cal.App.4th 664.)
Example:
A search warrant was issued two months after a series of unsolved burglaries.
Commercial checks stolen in one of the burglaries still had not been cashed, and a
master key to a business had not been found. HELD: The warrant was valid. Given
the nature of the stolen property, there existed a "fair probability" that the goods
would still be in the defendant's residence. (Carrington (2009) 47 Cal.4th 145, 164.)
Example:
Information about a marijuana dealer was first obtained on September 10 and was
partially confirmed between then and September 19, when a warrant was obtained.
The warrant was executed 10 days later, on the 29th. Everything was upheld as
timely. (Cleland (1990) 225 Cal.App.3d 388; Brown (1985) 166 Cal.App.3d 1166-neighbor's observation of dozens of two-inch tall marijuana plants being cultivated
and irrigated six weeks earlier was sufficiently reliable to justify a search warrant.)
Example:
An affidavit otherwise lacking specificity and dates of critical events was not stale in a
stalking investigation, which involved a pattern of criminal activity over an extended
period of time. The affidavit, as a whole, suggested that the ongoing criminal conduct
would continue in the future. (Wood v. Emmerson (2007) 155 Cal.App.4th 1506.)
Example:
Over 23 years after a murder, a DNA match linked Lazarus, an LAPD officer, to the
shooting death of her former boyfriend's wife. Officers obtained a search warrant for
her residence, vehicle, and computers and a second warrant to search the computers
and storage media. The probable cause to search for the gun used in the shooting and
personal records was not stale. (Lazarus (2015) 238 Cal.App.4th 734.)
Example:
The victim's purse was stolen in March 2002, and in July 2004 she learned that her
identity had been used to open accounts for wireless phone services between
November 2003 and July 2004. In September 2004, police obtained a warrant to
search Jones' apartment for evidence of identity theft. HELD: The probable cause
was not stale. The crime of identify theft was an ongoing operation, unlike a solitary
drug buy, and supported the issuance of the warrant even though the last definitive
link to Jones using the victim's identity was in November 2003. The court issuing the
warrant was allowed to infer that Jones was responsible for the continuing acts of
identity theft so that evidence of the crime would likely be found in his residence.
(Jones (2013) 217 Cal.App.4th 735.)
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Example:
Police obtained a search warrant for 13 individuals, 9 vehicles, and 13 homes and
businesses for narcotics sales. Hirata's home was one of the residences named in that
warrant. Although the affidavit described a criminal conspiracy and indicated the
Hirata had completed a narcotics transaction 82 days earlier, the warrant was "stale"
with regard to Hirata's residence at the time it was issued. When a search warrant
designates the search of more than one person or place, there must be adequate
probable cause to justify its issuance as to each place or person named in the warrant.
The Leon "good faith" exception did not apply because it was apparent that probable
cause was lacking when the officers obtained the warrant. (Hirata (2009) 174
Cal.App.4th 1499.)
Example:
Information 34 days old concerning a cocaine sale and the suspect's promise to "try"
to obtain more was held to be "stale." (Hemler (1975) 44 Cal.App.3d 430; Hulland
(2003) 110 Cal.App.4th 1646 [information concerning a controlled buy 52 days before
obtaining the warrant was too "stale" to allow good faith reliance on the warrant].)
The longer the delay, the more advisable it is to include information that the criminal activity
is continuing. For example, surveillance might show that between the time the contraband
was last observed and the time the warrant is sought known narcotics users were seen visiting
the residence for short periods of time.
The Ninth Circuit case of Vaandering (9th Cir. 1995) 50 F.3d 696, 700, lists several cases
where relatively old information (for example, 18 and 22 months old) was not considered
"stale" owing to either (1) the ongoing nature of the illegal business involved (such as drug
distribution or paraphernalia manufacturing) or (2) the fact that the "old" information was
coupled with relatively recent information. (See Leasure (9th Cir. 2003) 319 F.3d 1092, 1099
[when an affidavit establishes the existence of a widespread, established, ongoing narcotics
operation, staleness arguments "'lose much of their force'"]; Alvarez (9th Cir. 2004) 358 F.3d
1194, 1204 [information related to activity occurring up to three years before the warrant was
issued was not stale in a widespread cocaine conspiracy case].) Facts supporting a finding of
a general criminal conspiracy will not be sufficient without a showing of probable cause that
material to be seized is still present at a particular location. (Hirata (2009) 174 Cal.App.4th
1499, 1505.)
Note that confusion can sometimes result from imprecise language about when the
information was obtained by an informant versus when it was related to the affiant. To avoid
this problem, state in one sentence the date(s) that the affiant received the information from
the informant and, in a separate sentence, the date(s) the informant obtained his information.
X.
EXPERTISE, TRAINING AND EXPERIENCE
Police officers usually have expertise, gained through training and experience, as to what
narcotics look and smell like, how they are packaged, slang terms used to refer to them, etc.
Officers also acquire expertise in other crimes, such as burglary. When preparing an
affidavit, be sure to set forth your training and experience to show the basis of your opinions.
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6.12
SEARCH WARRANTS
Where a "lay" informant is giving the affiant the information, the same thing holds true. It is
not enough to simply state that the informant saw heroin or a stolen television without adding
how she recognized it--what background, training, experience, or other knowledge enabled
her to say that the powder (or bindle) she saw was heroin or that the television was stolen.
Often, of course, the informant is a shady character herself who has used drugs or is familiar
with their appearance and packaging. Occasionally, a "citizen informant" will also have had
some training in recognizing drugs. The important point is that all this should be conveyed to
the magistrate. (Krauss (1971) 5 Cal.3d 418; Guidry (1968) 262 Cal.App.2d 495.)
XI.
DESCRIBING THE PLACE TO BE SEARCHED
The place(s), thing(s), or person(s) to be searched or searched for must be described with
"reasonable particularity" in both the warrant and the affidavit. (U.S. Const., 4th Amend., §
13; Pen. Code, §§ 1525, 1529; Garrison (1987) 480 U.S. 79, 84; Kraft (2000) 23 Cal.4th 978,
1041; Bradford (1997) 15 Cal.4th 1229, 1291, 1296.) However, remember that in a complex
case, a warrant may be more generalized than in a simpler investigation resting on more direct
evidence. (Kraft (2000) 23 Cal.4th 978, 1041.)
A rule of thumb to follow is: a person with no knowledge of the case should be able to find
the location to be searched based on the description. (Minder (1996) 46 Cal.App.4th 1784,
1788.) A single warrant may authorize a search of multiple locations, as long as probable
cause exists as to each place or vehicle and each is adequately described. (Easley (1983) 34
Cal.3d 858, 870.)
Inaccurate descriptions may or may not result in the suppression of evidence seized.
Compare Collins (9th Cir. 1987) 830 F.2d 145 [evidence suppressed where inaccuracies
resulted in wrong house being searched] with Amador (2000) 24 Cal.4th 387 [errors,
including the wrong address, did not result in suppression where the residence was otherwise
accurately described and there was no reasonable possibility of confusion, the correct house
was searched, and the officer who submitted the erroneous material and included it in the
affidavit had personally viewed the residence earlier and also personally led the officers who
executed the warrant on the intended house]. The key is the degree of risk that the wrong
house may be searched, and the executing officers' personal knowledge is a factor that a court
may properly consider when assessing this risk. (Amador (2000) 24 Cal.4th 387.)
If, before serving the warrant, you realize that the description is incorrect, do not serve the
warrant. Instead, correct the description and return the documents to the magistrate for
another signature.
Always make sure that the descriptions in the warrant and affidavit of the place to be searched
are correct and exactly the same.
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SEARCH WARRANTS
A.
6.13
Premises
When seeking to search large parcels of land and structures thereon, you should, if possible,
designate the location, address, and size of the parcel, and provide a brief description of the
dwelling and other structures you wish to search. (See McNabb (1991) 228 Cal.App.3d 462,
469.)
Example:
". . . the premises at 11301 East Valley Boulevard, El Monte, further described as a
single-story dwelling house with tan stucco exterior, dark brown wooden trim and a
red tile roof; and all rooms, attic, basement and other parts therein; and the
surrounding grounds, garage, storage rooms and out- buildings of any kind located on
the premises."
Generally, a description of the premises also automatically includes the right to search areas
and things adjacent to the premises, such as a garbage can or a mailbox, as long as the other
place or thing is obviously linked or related to the premises. (Weagley (1990) 208
Cal.App.3d 569.) However, it never hurts to include the words "and appurtenances" in the
description.
Courts should, moreover, review your descriptions of places and property with the same
"commonsense and realistic fashion" as they use when reviewing your descriptions of the
things to be seized. (Smith (1994) 21 Cal.App.4th 942, 949; Minder (1996) 46 Cal.App.4th
1784, 1788.)
Example:
A warrant for "the premises located at and described as . . . 9110 Temattate Drive,
Nipomo, CA . . . including all rooms and buildings, outbuildings, garages, yard areas,
trash containers, storage areas and containers used in connection with or within the
curtilage of said premises and buildings" was upheld as sufficiently particular to
authorize the search of an aluminum "barn" located a quarter mile away from the main
residence (a mobilehome), even though the warrant failed to reflect that the
"premises" consisted of a 40-acre parcel, did not use the word "barn," and did not give
the "barn's" location, which was obviously not within the mobilehome's "curtilage."
(Smith (1994) 21 Cal.App.4th 942, 948-951.)
Example:
A warrant for the only home on a 10-acre parcel authorized searching "the Minder
residence, and the premises therein" for firearms. HELD: This description did not
limit the police to the interior of the house, but rather was good enough to include a
large, double-door safe (containing 17 guns) found near the back porch about one to
two feet outside an exterior wall of the house. (Minder (1996) 46 Cal.App.4th 1784,
1788.)
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SEARCH WARRANTS
Example:
A warrant authorizing the search of a residence (an old, immobile bus) automatically
authorizes a search of the residence's curtilage as well (large plastic jar partly buried
outside next to the residence). (Gorman (9th Cir. 1996) 104 F.3d 272, 275.)
Remember, too that when you seek to search all the structures on a large parcel, your affidavit
must establish probable cause as to each one. For instance, in connection with a warrant for
cocaine, it might be reasonable, based on your experience, to believe cocaine might be hidden
anywhere on the seller's parcel, including in any of the outbuildings. (Smith (1994) 21
Cal.App.4th 942, 950.)
On the other hand, although the existence of marijuana garden might provide probable cause
to search a nearby inhabited structure or two, it would not provide probable cause to search
every structure located anywhere on a 28-acre parcel. (Joubert (1983) 140 Cal.App.3d 946,
952-954.)
Example:
A warrant authorized search of a residence (with a specific address) and storage areas.
There were two separate structures within the fenced parcel: the main house, whose
address matched, and another building which the affiant had thought was a garage. It
turned out, however, that the garage had three separate parts: two storage rooms,
accessible only from the exterior and controlled by the owner of the main house, and a
separate living unit, with its own entrance, bathroom and appliance, which had been
rented out. Held: The warrant authorized search of the main house and the two
storage rooms in the converted garage, but not the rental unit. "The rental unit was
clearly a separate dwelling for which a separate warrant was required." (Cannon (9th
Cir. 2001) 264 F.3d 875, 879.)
The problem of whether you have enough information to justify a search of the suspect's
residence is further discussed under "Probable Cause", Paragraph VII, above.
B.
Vehicles
Similarly, always include as full a description of the vehicle as possible - i.e., the license
number, color, year, make and model. (See McNabb (1991) 228 Cal.App.3d 462, 469.)
Example:
". . . a white, 1972 Ford LTD, two-door, bearing California license number 123
ABC."
However, even if the warrant does not describe any vehicles, it does permit the search of any
vehicles which (1) are found on the premises and (2) are owned or controlled by the owner of
the premises. (Duque (9th Cir. 1995) 62 F.3d 1146, 1151.)
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A valid warrant to search a vehicle authorizes the seizure of the vehicle for the time
reasonably needed to undertake the search. If forensic tests are required, you can take the
vehicle to a crime laboratory for the period of time reasonably required to complete the
search. (Superior Court (Nasmeh) 151 Cal.App.4th 85.)
Note:
C.
The Sixth District Court of Appeal has upheld forensic testing of a car based
solely on the language in the warrant allowing a search of the vehicle and
seizure of "any parts thereof." (Superior Court (Nasmeh) 151 Cal.App.4th 85.)
Persons
If there is probable cause to search a person, include the person's name, sex, race, age, height,
weight, hair color, eye color, and distinguishing marks, if known.
If the person is to be searched in conjunction with the premises, put that in the affidavit.
Example:
D.
". . . the person of James Williams, a.k.a. 'Stubbs,' a male Caucasian, approximately 35
years old, 5'1", 185 pounds, brown hair and eyes, believed to be within the abovedescribed premises."
Containers or "Other Places"
When a warrant authorizes the search of a residence, vehicle, or person, it automatically
authorizes the search of any thing, place, or container inside that residence or vehicle, or on
that person, where the object of the search might be located. Thus, if the warrant authorizes a
search for heroin and indicia of ownership and identification, you may properly search
virtually anyplace, including any closed containers, and no description of the actual container
would be necessary in the warrant.
If, however, the warrant was not for a building or vehicle, but instead was for a particular
container or some "other place" only, that container, thing, or other place would also have to
be described as completely as possible.
Example:
". . . a blue and green suitcase bearing Pan American tag number PA-171-48, now
located within the secured baggage room of the Pan American air freight warehouse,
Los Angeles International Airport, 1 World Way, Los Angeles."
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6.14b
E.
SEARCH WARRANTS
Incomplete Description
If a complete description cannot be stated, describe the premises, vehicle and person as fully
as possible and state their specific or probable location.
Note:
F.
Be sure to state in the affidavit the reason why a complete description of the
place is impossible.
Address Unknown
If the specific address is unknown or the location is not marked within an address, special
particularity should be used in describing it.
Example:
". . . a green stucco two-story dwelling house with a red roof and boarded-up windows
located on the north side of 91st Place, between Halldale Avenue and Normandie
Avenue in Los Angeles; this house is the fourth structure west of the northwest corner
of Normandie Avenue and 91st Place; it is extensively marked with graffiti and the
words, 'Little Chico,' appear in large block letters on the front door--and all rooms,
attics, basements, and other parts therein, including a compartment located within the
west living room wall, and the surrounding grounds, and any garages, storage rooms,
trash containers, or outbuildings of any kind located thereon."
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This description is sufficiently detailed to avoid mistaking this house for other similar
abandoned ones on the same block. Also, the specific reference to the wall compartment
makes it unmistakable that the searching officers may go into the structure of the wall itself if
necessary.
Example:
". . . a large, dilapidated two-story barn, approximately one hundred feet on each side,
faded red in color and located on the south side of Mulholland Highway
approximately 2.8 miles west of Las Virgenes Road in the Los Angeles County area
east of Malibu Lake (the roof of the barn bears faded white letters reading, 'Chew Mail
Pouch Tobacco'; the structure is located approximately two hundred feet off the road
and there are several old farm implements and two junked cars in front of the
structure; one of the cars appears to be a white, 1955 Chevrolet); and all rooms, attics,
cellars, lofts, storage areas, and other parts therein, and the surrounding grounds and
any storage rooms or outbuildings of any kind located thereon."
These descriptions are more detailed than those in which an address is known. This is
because sufficient detail must be given to avoid any possibility that the description could
apply to other nearby locations.
G.
Use of Photographs and Diagrams
If an adequate written description would be difficult to formulate or would be excessively
lengthy, you should consider the use of photographs and diagrams to supplement a written
description.
Example:
". . . the premises of a large, dilapidated red barn located on the south side of
Mulholland Highway approximately 2.8 miles west of Las Virgenes Road in the Los
Angeles County area as shown on the color photographs attached hereto and
incorporated as Exhibit #1; and all rooms, attics, cellars, lofts, storage areas, and other
parts therein, and the surrounding grounds and any storage rooms or outbuildings of
any kind located thereon."
In this type of situation, duplicate photographs should then be marked "Exhibit #1" and
attached to both the search warrant and the affidavit. If only a single photo is available, then
reasonably clear photocopies may be used. However, the original photo should be attached to
the original of the search warrant because it is the original warrant that the searching officer
theoretically uses to locate and identify the premises to be searched.
Example:
". . . a small wooden shack, and all rooms and parts therein, and the surrounding
grounds consisting of approximately 20 acres, located just west of the Golden State
Freeway and south of Henry Mayo Drive (near Castaic Junction) as marked on page
123 of the Thomas Bros. Map attached hereto and incorporated as Exhibit #1 and as
outlined in red on the aerial photograph attached hereto and incorporated as Exhibit
#2."
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SEARCH WARRANTS
Example:
". . . a light tan older model Volkswagen van as shown on the photograph attached
hereto and incorporated as Exhibit #1 and believed to be parked at 171 North La Brea
Avenue, Inglewood."
Example:
". . . the person known as 'Angel,' a male/Caucasian approximately 30-40 years, 5'5",
180 pounds, as shown on photograph attached hereto and incorporated as Exhibit #1
and believed to be residing within the premises described above."
XII.
DESCRIBING THE PROPERTY TO BE SEIZED
The property to be seized also must be described with "reasonable particularity." (U.S.
Const., 4th Amend.; Cal. Const., art. I, § 13; Pen. Code, § 1525; Bay (1992) 7 Cal.App.4th
1022, 1025; see also Bryant (2014) 60 Cal.4th 335, 369; Eubanks (2011) 53 Cal.4th 110.)
The reason for this requirement is to prevent "exploratory" searches. (Kraft (2000) 23 Cal.4th
978, 1041; Bradford (1997) 15 Cal.4th 1229, 1291, 1296.)
In order to satisfy this requirement, the warrant must place a "meaningful restriction" upon
the objects to be seized. It is necessary to describe the items to be seized as specifically as
possible. If you know the gun you are looking for is a .25, say so; do not just say a gun. If
you are looking for clothing, give the color, style, material, and anything else distinguishing
you are aware of. If you do not know the color, try to specify if light or dark. Put in
everything you know. If you cannot be more specific, explain why.
Stated another way, to avoid or minimize potential "overbreadth" problems, you should:
-
describe the material you are after with as much care and particularity as possible;
-
make a real effort to have some reference (preferably amounting to "probable cause")
in the affidavit for each type or classification of property you are seeking; and
-
conduct thorough briefings before executing the warrant, emphasizing that only the
materials described in the warrant may be sought and seized.
The courts want to see that you were aware of the limited authorization that a warrant
provides. They do not like the attitude that because you had a warrant, you could take
"anything and everything."
On the other hand, you are entitled to seek "indicia of ownership" and use language such as
"personal property tending to establish the identity of persons in control of the premises,
including, but not limited to, utility company receipts, rent receipts, canceled mail envelopes,
photographs and keys." (Nicolaus (1991) 54 Cal.3d 551, 574; Eubanks (2011) 53 Cal.4th
110; Rogers (1986) 187 Cal.App.3d 1001.) These "dominion and control" clauses are
standard features in search warrants. (Varghese (2008) 162 Cal.App.4th 1084, 1100.)
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6.17
Example:
Balint's residence was searched pursuant to a warrant in a possession of stolen
property investigation. Officers seized a laptop computer that was not included in the
list of stolen property or in the list of property to establish "dominion and control" of
the premises. HELD: The computer, found in its open position, was properly seized
pursuant to the "dominion and control" clause as a "container of information" not
unlike documents placed in a file cabinet. (Balint (2006) 138 Cal.App.4th 200;
accord, Varghese (2008) 162 Cal.App.4th 1084, 1103--"dominion and control" clause
authorized seizure of portable laptop computer found in murder suspect's car outside
his residence.)
Example:
Deputies found three dead children, one child fatally wounded, and defendant, who
had shot herself, inside a private home. A warrant was obtained authorizing a search
for "documents and effects which tend to show possession, dominion and control"
over the premises. A second warrant was obtained three days later also authorizing
the seizure of items tending to show "possession, dominion, and control."
Handwritten letters implicating defendant in the murders were seized in the first
search. HELD: The warrants were not overbroad. Law enforcement "could not have
realistically described the personal property sought to establish dominion and control
with any more particularity." The crimes had occurred in the residence, and anyone
who had access to or dominion and control of the home needed to be eliminated as
suspects. (Eubanks (2011) 53 Cal.4th 110.)
Further, it is clear that if the rest of the warrant is sufficiently specific, it is valid despite
inclusion of one overbroad segment or category (Bradford (1997) 15 Cal.4th 1229, 12921293) or a general "catch-all" provision at the end ("other information or objects showing
violation of the above statutes") (Whitworth (9th Cir. 1988) 856 F.2d 1268, 1280).
Finally, remember that in a complex case, a warrant may be more generalized than in a
simpler investigation resting on more direct evidence. (Kraft (2000) 23 Cal.4th 978, 1041.)
A.
Examples of Overbroad Descriptions
In the following examples, the courts found the descriptions invalid as overbroad because no
"meaningful restriction" was included, that is, no guidelines to aid officers in determining
what was being sought or seized.
Example:
"Narcotic controlled substances, drug paraphernalia, marijuana cultivation equipment,
instruction, notes, cultivation magazines, currency, documents, and records and fruits
and instrumentalities of a violation of Title 21, U.S.C. § 841(a)(1)." (Clark (9th Cir.
1994) 31 F.3d 831, 836.)
Example:
"[A]ll books, records, accounts and bank statements and canceled checks of receipt
and disbursement of money" without regard to the participants in or dates of the
transactions. (Burrows (1974) 13 Cal.3d 238.)
Example:
"[T]elevision sets, power tools, appliances, hand tools, home furniture, clothing,
power drill press." (Murray (1978) 77 Cal.App.3d 305.)
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6.18
SEARCH WARRANTS
Example:
A list of numerous documents by general categories, such as "checks, check stubs," and
"bank statements," followed by "any and all records and paraphernalia" connected with
the suspect's business. (Aday (1961) 55 Cal.2d 789; see Bridges (9th Cir. 2003) 344 F.3d
1010, 1017--a list of all property, papers, and office equipment that would be a part of any
small- or medium-sized business.)
Example:
"All documents, writings, and property, including general ledgers, journals, cash
disbursement journals, billings, check stubs, contracts, ledgers," etc., where the warrant
did not indicate the nature of the crime (practicing law without a license), the affidavit
was not attached to the warrant, and the warrant was executed by a special master rather
than the affiant. (Bay (1992) 7 Cal.App.4th 1022--but the search was upheld under the
Leon "good faith" exception.)
Example:
Warrant was bad (more than a mere "technical violation") where, for the description, it
said "See Attachment # 1," but it was neither attached nor taken along. (Van Damme (9th
Cir. 1995) 48 F.3d 461, 466.)
Example:
Warrant was overbroad where it described mostly "general categories" of materials (credit
card receipts, business receipts, records of telephone calls, canceled checks), which
permitted the police to seize virtually every writing in the house. (Frank (1985) 38 Cal.3d
711.)
B.
Examples of Sufficiently Specific Descriptions
Courts have found that the following satisfy the "meaningful restriction" requirement.
Example:
"[A]ny papers or writings, records that evidence dealings in controlled substances,
including, but not limited to address books, ledgers, lists, notebooks, etc., that evidence
dealings in controlled substances." (Toubus (1981) 114 Cal.App.3d 378, 386.)
Example:
Officers had probable cause to believe Barnum had mailed bombs to different people.
The warrant to search listed "certain property, namely typewriter(s), tools, wires, shotgun
shells, explosive materials and devices, correspondence, address books, school brochures,
directories and other documents which are instrumentalities and evidence of crimes
against the United States to wit: Title 18, United States Code Sections 876 and 1716."
The warrant was proper because it "identified the items to be sought and left nothing to
the discretion of the searching officers." (Barnum (1980) 113 Cal.App.3d 340.)
Example:
Search warrant in a murder case authorizing general search and seizure of defendant's
vehicle was sufficient to allow forensic testing for trace evidence at the crime lab.
(Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85.)
Example:
"Scientific evidence, including but not limited to fingerprints, powder burns, blood, blood
spatters, photographs, measurements, bullet holes, hairs, fibers" was sufficient. (Schilling
(1987) 188 Cal.App.3d 1021.)
Example:
"Any article or personal property tending to establish the identity of persons who have
dominion and control over the premises" was not overbroad. (Bryant (2014) 60 Cal.4th
335, 370; Nicholaus (1991) 54 Cal.3d 551, 554--"Letter, papers, bills tending to show the
occupants of 2335 Erikson St." was sufficient.)
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SEARCH WARRANTS
6.18a
Example:
A search warrant issued during the investigation of oral copulation and sodomy
charges concerning a minor the defendant met through an AOL "Instant Messages"
chat line authorized the seizure and subsequent search of defendant's home computer
to discover depictions of sexual acts and "correspondence which appears to relate to
the exploitation of children." The warrant was not overbroad, and the transcripts of
the AOL instant messages taken from defendant's computer were properly admitted at
trial. (Ulloa (2002) 101 Cal.App.4th 1000.)
Example:
An affidavit identified Camel as the principal suspect in multiple murders committed
with firearms. The search warrant for his residence authorized the search of two
described vehicles and any other vehicles on the property or under the control of
occupants of the premises to be searched. The warrant was not overbroad because it
was reasonable to believe that Camel could have stashed evidence of the crimes in any
of the cars, including an inoperative green Saturn on the front lawn. (Camel (2017) 8
Cal.App.5th 989.)
C.
Scope
Related to the issue of sufficiently specific descriptions is the question of the scope of a
search warrant. "The scope of a warrant is determined by its language, reviewed under an
objective standard without regard to the subjective intent of the issuing magistrate or the
officers who secured or executed the warrant." (Balint (2006) 138 Cal.App.4th 200, 207.) In
determining whether the seizure of a particular item exceeds the scope of a warrant, courts
look to whether the item is "similar to" or the "functional equivalent of" items listed in the
warrant or is a container in which listed items are "reasonably likely" to be found. (Rangel
(2012) 206 Cal.App.4th 1310, 1316; Balint (2006) 138 Cal.App.4th 200, 208.)
Example:
A search warrant authorized the search for records, documents, and correspondence
relating to the possession of false identification and child support evasion. Officers
seized defendant's computer even though a computer was not specified in the warrant.
Upholding the seizure, the court found "ample evidence" that the documents identified
in the warrant could be found in the computer files. "[A]ttempting to limit Fourth
Amendment searches based on the format of stored information would be arbitrary."
(Giberson (9th Cir. 2008) 527 F.3d 882, 886-888; but see Payton (9th Cir. 2009) 573
F.3d 859--warrant did not authorize search of computer in narcotics investigation
because issuing judge did not authorize computer search despite affiant officer's
request in the affidavit.)
Example:
A warrant authorized the seizure of any and all items constituting "gang indicia,"
noting that "[gang-related] paraphernalia typically retained by gang members can also
appear in other forms, including but not limited to, newspapers, artwork, compact
disks, audio- and video-cassettes, ca