These criminal case decision summaries are taken from past issues of the Law Enforcement Legal Reporter (LELR). A typical monthly issue contains from four to seven summaries. A typical year will contain approximately 60 to 75 summaries. Over its 39 years of publication, the LELR has summarized approximately 2100 cases. Here are just a few particularly important ones.
Stanton v. Sims (2013) - Hot pursuit entry into a residence to capture a fleeing misdemeanor suspect is lawful.
People v. Mosley (1999): "Custody" for Miranda purposes is evaluated using a reasonable man standard as of the time of the interrogation. Public Safety and Rescue Doctrine exceptions explained.
Berghuis v. Thompkins (2010): Express Miranda waiver is not required prior to interrogation. Waiver is implied by suspect answering questions. Invocation of Miranda rights must be unequivocal.
People v. Schmitz (2012): In a vehicle stop situation, police may search the passenger compartment and items within it if the driver or if a passenger is a parolee or a probationer with a search condition.
People v. Hairston (2009): Resisting Arrest. Defendant's flight from three officers is three counts of resisting arrest.
People v. Thorn (2009): Burglary. A carport can be an inhabited dwelling house for burglary purposes.
In re Richard G.(2009): Detention. OK to detain a suspect based upon an anonymous phone call. OK to prosecute a suspect for crimes committed during an unlawful detention.
v. Gant (2009): Vehicle Stops and Searches. Car search incident to the
arrest of an occupant is limited.
People v. Wells (2006): Vehicle Stops and Searches. OK stop described car based solely upon an anonymous call reporting erratic driving.
STANTON v. SIMS
(2013) 187 L Ed 2d 341
SEARCH AND SEIZURE
HOT PURSUIT ENTRY FOR MISDEMEANOR OFFENSE IS LAWFUL
While in uniform and responding to a neighborhood disturbance, you develop reasonable suspicion to detain a suspect. You call to him to stop. He takes off running. You go in foot pursuit. He runs into a home. Can you follow him into the home? If you can, do you have to “knock and notice” before entering?
Officer Mike Stanton and his partner responded to a call about an unknown disturbance involving a person with a baseball bat in La Mesa, California. The officers, in uniform and in a marked police car, drove to the location of the reported disturbance. They were familiar with the neighborhood. It was known for violence associated with area gangs. They saw three men walking in the street. Upon seeing the police car, two of the men turned into a nearby apartment complex. The third man, Nicholas Patrick, crossed the street about 25 yards in front of the police car and ran or quickly walked toward a residence.
Officer Stanton did not see Patrick with a baseball bat. Nevertheless, he considered Patrick’s behavior suspicious and decided to detain him. Stanton exited his police car, called out “police” and ordered Patrick to stop in a voice loud enough for all in the area to hear. But Patrick did not stop. Instead he looked directly at Stanton, ignored his order to stop, and quickly went through the front gate of a fence enclosing a nearby yard. When the gate closed behind Patrick, the fence – which was more than six feet tall and made of wood – blocked Stanton’s view of the yard. He could not see what was in the area behind the gate or the fence.
At this point, Officer Stanton believed his had probable cause to arrest Patrick for a violation of Penal Code section 148 – willfully resisting, delaying and obstructing a police officer in the lawful performance of his duties – a misdemeanor. He also feared for his safety. So he made the split second decision to kick open the gate in pursuit of Patrick. He did so. Unfortunately and unbeknownst to Officer Stanton, Drendolyn Sims was standing behind the gate when it flew open. It hit her, cutting her forehead and injuring her shoulder. She was the lawful occupant of the residence at that location.
Drendolyn Sims filed a 42 U.S. Code section 1983 civil action against Officer Stanton in federal district court. She alleged that Stanton unreasonably searched her home in violation of the Fourth Amendment. The district court judge found that Stanton’s entry was lawful under the circumstances and dismissed the lawsuit.
Sims then appealed to the United States Court of Appeals for the Ninth Circuit. That Court reversed the ruling of the district court judge. It held that Stanton’s warrantless entry into Sims’ yard was unconstitutional. It ruled her yard was entitled to the same constitutional protection as her home and that Stanton had no right to make a warrantless entry because there was no immediate danger and because Patrick had committed only the minor offense of disobeying a police officer. It also ruled that the law that officers cannot make a warrantless entry into a home to arrest for a misdemeanor offense was clearly established. Thus, Officer Stanton was not entitled to the protection of “qualified immunity” since he should have known he was committing a constitutional violation. This decision appeared as Stanton v. Sims (9th Cir. 2013) 706 F.3d 954.
Officer Stanton appealed, and the matter was accepted for review by the United States Supreme Court.
RULING AND REASONING
In a “by the court” decision with no dissents, the Supreme Court reversed the ruling of the Ninth Circuit. It did so by finding that Officer Stanton was in fact entitled to the protection of “qualified immunity.”
The Supreme Court began by describing the doctrine of qualified immunity as follows:
The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law. . . . Existing precedent must have placed the statutory or constitutional question beyond debate. 187 L Ed 2d at p. 344.
It then said that there was no suggestion that Officer Stanton knowingly violated the Constitution. The only issue, therefore, was whether in light of existing law at the time he was “plainly incompetent” in entering Sims’ yard to pursue the fleeing Patrick. In this regard, the Supreme Court then pointed out that there was federal and state case law going both ways on this issue. Some appellate courts had found a hot pursuit entry into a residence to arrest a fleeing misdemeanor suspect was lawful and others had found such entries to be unreasonable within the meaning of the Fourth Amendment’s prohibition against unreasonable searches.
The Supreme Court also pointed out that although it had ruled in the case of Welch v. Wisconsin (1984) 466 U.S. 740, 750 that officers could not make a warrantless entry into a residence to arrest an occupant for a misdemeanor offense, that the Welch case did not involve hot pursuit and thus was inapplicable to the situation involving Officer Stanton who was in hot pursuit of fleeing suspect Patrick. It also noted that the Welsh case “did not lay down a categorical rule for all cases involving minor offenses, saying only that a warrant is ‘usually’ required.” 187 L Ed 2d at p. 345. Thus, nothing in the Welsh decision mandated that officers could never make a hot pursuit entry into a residence to arrest a fleeing misdemeanor suspect.
The Supreme Court then discussed its decision in the case of United States v. Santana (1976) 427 U.S. 38, 42-43. This case established very explicitly that “hot pursuit of a fleeing felon justifies an officer’s warrantless entry” into a residence. 187 L Ed 2d at p. 345. It emphasized that nothing in that decision necessarily limited its holding to the hot pursuit of fleeing felons only. 187 L Ed 2d at p. 346.
As examples of cases permitting hot pursuit entries into homes to capture a fleeing misdemeanor suspect the Supreme Court pointed to the California Court of Appeal cases of People v. Lloyd (1989) 216 Cal.App.3d 1425, 1430; and In re Lavoyne M. (1990) 221 Cal.App.3d 154, 159. It then quoted with approval the following language from People v. Lloyd:
Where the pursuit into the home was based on an arrest set in motion in a public place, the fact that the offenses justifying the initial detention or arrest were misdemeanors is of no significance in determining the validity of the entry without a warrant. 187 L Ed 2d at p. 346.
Thus, since there was no U.S. Supreme Court decision specifically prohibiting a warrantless entry into a residence by an officer in hot pursuit of a fleeing misdemeanor suspect and since there was both federal and state case law permitting such entries – including two from California where the Sims case originated – the Supreme Court found that the Ninth Circuit was wrong to rule that the law was clearly established that such hot pursuit entries by officers chasing fleeing misdemeanor suspects was unconstitutional. Thus, it ruled that Officer Stanton was entitled to the protection of qualified immunity, and it reversed the contrary ruling by the Ninth Circuit.
APPLICATION TO POLICE WORK
The Supreme Court in this case pointed out that it was not saying a warrantless entry into a residence to capture a fleeing misdemeanor suspect is constitutional, to wit: “We do not express any view on whether Officer Stanton’s entry into Sims’ yard in pursuit of Patrick was constitutional.” It simply said that because of conflicting case law on this issue, he was not “plainly incompetent” in doing so. Thus, he was protected by qualified immunity. 187 L Ed 2d at p. 347.
So where does that leave officers. Can you make a warrantless entry into a residence in hot pursuit of a fleeing misdemeanor suspect – or not? The answer in California is that you can. That is because the two California Court of Appeal decisions on this issue – People v. Lloyd and In re Lavoyne M, cited above, both approved of such entries. That means that all California trial courts are bound by the rulings in People v. Lloyd and In re Lavoyne M. Evidence recovered as a result of such entries cannot be suppressed based upon the entry.
In this regard, please recall that pursuant to the California Supreme Court case In re Lance W. (1985) 37 Cal.3d 873, 882, evidence can be suppressed only if suppression is mandated by decisions of the United States Supreme Court. That case stated: “the circumstances to which the federal exclusionary rule must be applied as a sanction in order to defer future unlawful conduct by police or other state agents are defined by the United States Supreme Court.” So unless the U.S. Supreme Court rules that a warrantless entry in hot pursuit of a fleeing misdemeanor suspect is unconstitutional no California court (or federal court, for that matter) can so rule. In re Lance W. is summarized in the February 2008 Law Enforcement Legal Reporter.
One final point: because the U.S. Supreme Court approved of the rulings of the California Courts of Appeal in the Lloyd and Lavoyne M. cases, it is worth reviewing those decisions. People v. Lloyd (1989) 216 Cal.Ap.4th 1425 involved a motorist fleeing into his house in order to avoid being given a traffic ticket. The Court of Appeal approved the hot pursuit of an officer into his house to arrest him as follows:
Calvin was outside and had just gotten out of his car and locked it when the uniformed officer requested his driver’s license and registration. This detention, adequately justified by the traffic violations committed in the officer’s presence [citation omitted] clearly began in a public place. Calvin refused to comply with the identification request, quickly walked away from the officer and proceeded first into a neighbor’s house and then into his own. With no right to resist this lawful detention [citation omitted], Calvin’s conduct in quickly walking away from the officer rather than complying with the demand for identification provided the officer with probable cause to arrest him (Pen. Code, section 148.) Under these circumstances, the officer’s “hot pursuit” into the house to prevent the suspect from frustrating the arrest which had been set in motion in a public place constitutes a proper exception to the warrant requirement. 216 Cal.App.3d at p. 1429, underline added.
The case of In re Lavoyne M. also involved a motorist – in this case, a minor – fleeing into a residence to avoid getting a traffic ticket. The Court of Appeal approved the actions of an officer in pursuing him into the house. It said:
Minor’s refusal to comply with the attempts to detain him provided probable cause for the officer to arrest him. (Pen.Code, section 148 [cite omitted]). Under these circumstances, hot pursuit of minor into his house to prevent him from frustrating an arrest began in a public place provides an exception to the warrant requirement. 221 Cal.App.3d at p. 159.
Both the Lloyd and In re Lavoyne M. cases also held that it was not necessary for the officers to comply with the knock and notice statute (Penal Code section 844) at the doors to the residences. “When an officer is in hot pursuit of a suspect, compliance with the knock-notice statute is excused.” In re Lavoyne M., at p. 160.
Another case approving the police entry into a home during a defendant’s attempt to flee from a lawful detention is People v. Sanchez (1978) 86 Cal.App.3d Supp. 8. In this case, an officer noted that the defendant – who was then in front of his home – appeared to be under the influence of narcotics. The defendant and his companions saw the officers and began to run into his house. The officers told them to stop, but they did not. The officer then followed the defendant into the house, detained and examined him, and arrested him for being under the influence of narcotics. The Court of Appeal ruled the entry was valid. It held that the defendant’s “flight from a lawful detention, into his home, was an exigent circumstance authorizing the officer to enter the home to complete his investigation.” 86 Cal.App.3d Supp. at p. 9.
So, once again: Can an officer make a warrantless entry into a residence in hot pursuit of a fleeing misdemeanor suspect – or not? The answer in California is that – you can.
PEOPLE v. MOSLEY
(1999) 73 Cal.App.4th 1081
"CUSTODY" IS EVALUATED BY A REASONABLE MAN STANDARD
AND THE DEGREE OF CONFINEMENT AT THE TIME OF QUESTIONING.
PUBLIC SAFETY AND RESCUE DOCTRINE EXCEPTIONS EXPLAINED.
You respond to the scene of a shooting. You see a crashed car with numerous bullet holes. There is a rifle and shell casings in the car. You are informed that paramedics are treating a gunshot victim in an ambulance nearby. You go there and see a bleeding man being treated by paramedics. You do not know what his involvement in the shooting was. Can you ask him questions without first giving a Miranda admonishment and getting a waiver? Would your answer be any different if you knew he was one of the shooters? If you do make an arrest and wish to interrogate a suspect, are you required to give a Miranda admonishment and get a waiver before asking any questions?
At about 5:30 p.m., several people were standing outside Aikin's Market in Lynwood. A tan car stopped on the wrong side of the street in front of the market. Suddenly, a number of shots - perhaps as many as fifty - were fired from the car towards the market. Two persons were hit by bullets. One was hit twice. He survived. The other was hit eleven times. He died.
Immediately following the shooting, the tan car drove off. As it did so, a dark car pulled out and followed the tan car.
The gunfire was heard by witness Hector Guzman who was working as security guard about a quarter mile away. He then saw a tan Buick Skylark traveling southbound on Atlantic Boulevard being followed by a dark car. A passenger in the dark car was shooting at the Buick Skylark. The Skylark then crashed into a light pole. The defendant, later identified as Quincey Lee Mosley, exited the Skylark through the passenger window. He was wounded and had blood on his hands. The defendant joined up with another man who had a gun. Both jumped over a fence and fled. The man with the gun helped the defendant get over the fence. Mr. Guzman saw all of this.
Los Angeles County Sheriff deputies arrived at the scenes of the shootings. Deputy Christopher Nee and his partner went to the Atlantic Boulevard shooting and saw a tan Buick Skylark crashed against a light pole. There were several bullet holes in the Buick. Deputy Nee spoke to Mr. Guzman who related what he had seen and gave a description of the man he had seen fleeing the Buick. He described the man as an 18 or 19 year-old Black man wearing a dark stripped shirt and black pants who was holding his hand as if he had been shot.
Deputy Nee then received information that a gunshot victim was being treated about a quarter mile away. He and his partner transported Mr. Guzman to that location to see if Guzman could make an identification. When Deputy Nee arrived at the location, he saw several sheriff's cars and an ambulance. He had Guzman wait in his patrol car while he (Deputy Nee) went to see the man in the ambulance.
Deputy Nee entered the ambulance and saw a man lying on a gurney and being treated by paramedics. This man was the defendant, Quincey Lee Mosley. Mosley's left arm was still bleeding. He was wearing a white and blue shirt and blue pants. Deputy Nee asked Mosley "what happened to him, how he had been shot?" The defendant replied that he had been sitting on a bus bench on Atlantic Boulevard when he heard gunshots. He walked to the corner and saw a Mustang automobile speeding towards him. Shots were fired from the Mustang, and he was hit in the arm. This all occurred about 150 yards north of the light pole the Buick had crashed into.
Subsequent investigation showed that the homicide victim was killed by a bullet fired from a .30 caliber carbine found in the crashed Buick. Further, bloodstains found in the Buick were matched to defendant Mosley by DNA analysis. The defendant was charged with the murder of the Aikin's market homicide victim.
In the trial court, the defendant made a motion to suppress the statements he made to Deputy Nee in the ambulance on the grounds that he had not been advised of his Miranda rights by the deputy prior to being questioned. The trial court judge ruled that the statements were admissible in court. The defendant was tried and convicted of murder. He appealed, again claiming that his statements had been taken in violation of Miranda and should not have been admissible at his trial.
RULING AND REASONING
The Court of Appeal ruled that at the time of the questioning the defendant was not "in custody" within the meaning of the Miranda decision. Thus, no Miranda advisement was necessary, and his statements were properly admitted at trial. (Second District, Division Five. Opinion by Justice Wiseman with Presiding Justice Turner and Justice Grignon concurring.)
The Court of Appeal reviewed the law relating to the advisement of Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). It noted that "advisement of Miranda rights is only required when a person is subject to custodial interrogation." 73 Cal.App.4th at p.1088. It then went on to define "custody" in relation to Miranda. The following quotation should be read carefully.
Custody, for these purposes, means that the person has been taken into custody or otherwise deprived of his freedom in any significant way. Furthermore, in determining if a person is in custody for Miranda purposes the trial court must apply an objective standard and decide if a reasonable person in the suspect's position would believe his freedom of movement was restrained to a degree normally associated with formal arrest. The test for custody does not depend on the subjective view of the interrogating officer or the person being questioned. The only relevant inquiry is how a reasonable man in the suspect's shoes would have understood his situation. 73 Cal.App 4th at pp. 1088-1089, internal cites omitted.
The Court of Appeal then noted that in the present case, the defendant was within the custody and care of paramedics when first seen by Deputy Nee. Further, when Deputy Nee entered the ambulance, he did not intend to place the defendant under arrest at that time. He simply wanted to find out what had happened at the scene of the shooting. He did not know if the defendant was involved and whether he was a victim or not. He thought he could get some further information to broadcast about suspects in the shooting. The entire conversation lasted only a couple of minutes, and the paramedics continued to work on the defendant during this conversation. With these facts in mind, the Court of Appeal ruled as follows:
Our review of the facts in the instant case leads us to the conclusion that defendant was not in custody within the meaning of Miranda when he was being treated by paramedics in the ambulance prior to being transported to the hospital. Any restraint of defendant's freedom of action was caused by the need to treat his gunshot wound. . . . We also note that the questioning was not accusatory or threatening, that defendant was not handcuffed, that no guns were drawn, and that defendant was about to be transported to a hospital and not to a police station or jail. Based on all of the circumstances present, we find a reasonable person in defendant's position would not have believed he was in police custody and that no Miranda rights were required prior to questioning. 73 Cal.App.4th at pp. 1090-1091.
In other words, since there was no custody, it was not necessary to advise the defendant of his Miranda rights and obtain a waiver before questioning him regarding the shooting. Or, as noted in the opinion, "The police may question a suspect without violating any principles set forth in Miranda so long as the person being spoken to is not in custody." 73 Cal.App.4th at p. 1091.
APPLICATION TO POLICE WORK
The important point to remember from this case is that so long as interviewing officers do nothing which would lead a reasonable man in the suspect's position to believe he is under arrest, the suspect may be questioned without the need of a Miranda advisement and waiver.
In the instant case, the defendant was given no reason to believe he was under arrest. He was simply being questioned in the same manner as any other completely innocent gunshot victim would be as the police were trying to determine what happened. Indeed, at the time, for all the arriving deputies knew, the defendant was a completely innocent gunshot victim - even though it does happen in gang shootings that a person who might initially appear to be a victim is, in fact, a perpetrator.
Suppose, however, that in the present case when Deputy Nee entered the ambulance he had gathered sufficient evidence to constitute probable cause to arrest the defendant. For example, suppose an eyewitness to the Aiken's Market shooting had been brought to the ambulance, looked through one of the windows, and saw and positively identified Mosley as one of the shooters. Under these circumstances, would Deputy Nee have to advise the defendant of his Miranda rights and obtain a waiver before asking him, "what had happened to him; how he had been shot?"
The answer is no. So long as Deputy Nee took no action which would have led a reasonable man in the defendant's position to believe he was under arrest, no Miranda advisement and waiver would be necessary even though Deputy Nee would have had probable cause to arrest the defendant and could lawfully have arrested Mosley if he wanted to do so.
Please recall, as stated above, that "The test for custody does not depend on the subjective view of the interrogating officer or the person being questioned." And "The only relevant inquiry is how a reasonable man in the suspect's shoes would have understood his situation." 73 Cal.App.4th at pp. 1088-1089.
Thus, the fact that Deputy Nee believes he has probable cause to arrest the defendant does not matter. All that matters is what is communicated to the defendant. If no action is taken which would lead a reasonable man in defendant's position to believe he is under arrest, it does not matter what is in the officer's mind. In fact, even if in the officer's mind the defendant is under arrest and even if he had told other officers at the scene that the defendant is under arrest and is not to be allowed to leave, the defendant is still not in custody for Miranda purposes unless somehow this is communicated to him.
Knowledge of these principles is important. There are many situations in which officers may wish to delay arresting a suspect, even though they have probable cause to arrest him, so that they may first attempt to interview the suspect without having to give a Miranda admonishment and obtain a waiver. There is no requirement that a suspect be arrested as soon as officers have probable cause to do so. It may be worthwhile to hold off making an arrest until the suspect is interviewed and statements obtained. Even exculpatory statements can be important since they tend to tie the defendant to that story rather than allow him to come up with a better story after he has had more time to think about his situation and knows more about the evidence against him.
A suspect can be told that he is not under arrest and is "only being detained while an investigation is being conducted" - even though in the officer's own mind the suspect is under arrest and will be taken to the station and booked. A suspect can even be told he is not under arrest and is free to go - in the hopes that he will allow himself to be interviewed without a Miranda admonishment and waiver - even though in the officer's own mind the suspect is under arrest and will be taken into custody and told he is under arrest if he tries to leave.
Once again, if officers take no action which would lead a reasonable man in the suspect's situation to believe he is under arrest, then the suspect is not in custody for Miranda purposes and officers may attempt to interview him or her without Miranda advisement and waiver. And recall also that the test is whether a "reasonable man" in the defendant's position would consider himself under arrest; not whether the defendant for reasons peculiar to himself considered himself under arrest.
Under what circumstances might a reasonable person consider his "freedom of movement restrained to a degree normally associated with formal arrest" without having been told he is under arrest? Naturally, this depends upon the facts of each case. However, some general principles can be expressed.
Simply telling a person he is being detained while an investigation is being conducted would normally not be the equivalent of an arrest since many people are detained and then let go. Thus, even though a detained person is not free to go during the period of detention, this alone is not the equivalent of an arrest.
However, if the detained person is handcuffed and placed in the caged portion of a police car, a reasonable man in such circumstances might consider himself under arrest. Or if the person is handcuffed and taken to a police station interview room a reasonable man in such situation would normally consider himself under arrest.
Degree of restraint at time of questioning:
But if the degree of restraint is subsequently lessened - such as a person being taken from a police car and the handcuffs removed - he would then no longer be considered in custody for Miranda purposes since it is the degree of restraint at the time of questioning that determines whether he is in Miranda custody. Or, as stated in the case of People v. Thomas (2011) 51 Cal.4th 449, 478:
We caution we do not suggest that Miranda warnings must be given in each instance where police officers initially use weapons or other force to effect an investigative stop. For Miranda purposes, we think the crucial consideration is the degree of coercive restraint to which a reasonable citizen believes he is subject at the time of questioning. Police officers may sufficiently attenuate an initial display of force, used to effectuate an investigative stop, so that no Miranda warnings are required when questions are asked. 51 Cal.4th at p. 478, citing to People v. Taylor (1986) 178 Cal.App.3d 217, 230.
Similarly, see In re Joseph R. (1998) 65 Cal.App.4th 954, wherein an officer handcuffed a juvenile and placed him in the back of his police car while the officer interviewed the juvenile's brother regarding a rock throwing incident. After about five minutes, the officer released and unhandcuffed the juvenile and then talked to him about the rock throwing. The juvenile admitted the rock throwing. The trial court and the Court of Appeal held that the juvenile was not in custody for Miranda purposes at the time he was questioned because at that time he was not subject to any of the restraints a reasonable man would deem the equivalent of an arrest.
Please note, however, that questioning must not be coercive and must not be accompanied by any threats, e.g., "talk, or you're going to jail." Threats and coercion - including promises of benefits, e.g., "talk and I can make things a lot better for you," will make the answers involuntary and involuntary statements of a suspect are inadmissible in court whether Miranda is applicable or not.
Skilled officers often find greatest success in talking in an apparently casual manner to suspects in the field as if they were only witnesses or bystanders and had done nothing for which the officer could arrest them. On the other hand, there are situations where an immediate arrest followed by a Miranda admonishment and waiver may be more likely to induce a suspect to make incriminating statements. Experienced officers learn to read the suspects and the situations and apply the technique that works best. But in no instance should threats or coercion be used.
Persons who agree to accompany officers to a police station to be interviewed as a "witness" are not in custody even though the officers may have probable cause to arrest the person. So long as the officers take no action that would make the person believe as a reasonable man that he is under arrest, he is not in custody for Miranda purposes. The case of People v. Zamudio (2008) 43 Cal.4th 327 involved such a situation and the Court of Appeal held that a reasonable man would not consider himself in custody simply because he was being interviewed at a police station. Zamudio is summarized in the August 2008 Law Enforcement Legal Reporter (LELR). (See also United States v. Redlightning, discussed below.)
People v. Mosley is a California Court of Appeal opinion. But the principles set forth in Mosley and in the discussion above have been expressed in numerous prior and subsequent U.S. Supreme Court and California Appellate and Supreme Court opinions. For example, California v. Beheler (1983) 463 U.S. 1121, 1125 determines if a suspect is in custody for Miranda purposes by examining whether there was a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." For similar language see Stansbury v. California (1994) 511 U.S. 318, 325-326, and People v. Stansbury (1995) 9 Cal.4th 824, 830. Note, in particular, the following quotation from Stansbury v. California:
Our cases make clear, in no uncertain terms, that any inquiry into whether the interrogating officers have focused their suspicions upon the individual being questioned (assuming those suspicions remain undisclosed) is not relevant for purposes of Miranda. 511 U.S. at p. 326. [And] even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. 511 U.S. at p. 325.
Thus, the oft referred to "focus of suspicion test" for Miranda custody is wrong. See also Yarborough v. Alvarado (2004) 158 L #d 2d 938 (in the July 2004 LELR) which reaffirms the "custody evaluated by the reasonable man standard."
A couple of final points: Are officers required to give a Miranda admonishment and get a waiver from an in-custody arrestee before interrogating him? The answer is no. There is no constitutional requirement that a Miranda admonishment be given and a waiver obtained prior to interrogating an arrestee. As stated in the case of United States v. Patane (2004) 159 L Ed 2d 667, 675: "The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn."
But a Miranda admonishment and waiver are required if the officer wishes the suspect's statements to be admissible in the prosecution's case in chief at trial. So in almost all instances in which a suspect is placed under arrest and is being questioned, officers will want to give a Miranda admonishment and get a wavier so that any admissions or confessions obtained from the suspect will be admissible in court.
United States v. Patane also held that statements taken without a proper Miranda admonishment and waiver - known as "outside of Miranda statements" - are still admissible at trial for impeachment purposes in the event the defendant testifies in a manner contrary to what he told the officer during the outside of Miranda interview. And outside of Miranda statements can be used a probable cause for a search, in a search warrant application, as a basis for further investigation, and to locate additional suspects and witnesses. Patane is summarized in the August 2004 LELR. So it may be worthwhile in some cases to take statements "outside of Miranda."
Please recall also that there are two specific situations where the Courts have made it clear that a Miranda admonishment and waiver are not required prior to questioning an arrestee and any statements obtained will be admissible in the prosecutions case in chief at trial. These are known as "the public safety exception" and the "rescue doctrine."
The first is the "public safety exception" where officers may ask questions in order to deal with an imminent threat to public safety. This exception stems from the case of New York v. Quarles (1984) 467 U.S. 649 where a rape suspect known to be carrying a gun was captured and arrested in a supermarket but no longer had the gun on him. The U.S. Supreme Court held it was permissible for officers to ask him "where's the gun" because the officers feared it had been dropped in the market or in some other place of public access where it could be picked up and fired resulting in death or injury. Both the question and the suspect's answer telling where he had dropped the gun were admissible at trial.
The holding of New York v. Quarles is best summed up in the following quotation from Allen v. Roe (9th Cir. 2002) 305 F.3d 1046, 1050:
[U]nder the public safety exception, Miranda warnings need not be given when "police officers ask questions reasonably prompted by a concern for the public safety." In order for the public safety exception to apply, there must have been "an objectively reasonable need to protect the police or the public from immediate danger." That is, the police must reasonably believe that there is a serious likelihood of harm to the public or fellow officers. 305 F.3d at p. 1050. (Allen v. Roe is summarized in the December 2002 LELR.)
The other situation where an arrestee need not be given a Miranda admonishment prior to questioning and the answers are nevertheless admissible in court involves what has come to be known as the "rescue doctrine." This doctrine, as expressed in the case of People v. Willis (1980) 104 Cal.App.3d 433 (summarized in the January 2004 LELR), held that it is permissible for officers to ask an arrested kidnapper the location of the victim without first giving a Miranda admonishment and asking for a waiver. In fact, this case held that questioning about the location of the victim can continue even if the defendant says he wants to remain silent and/or wants a lawyer.
Moreover, the rescue doctrine applies until the kidnap victim is found, either dead or alive. So long as the victim is still missing, officers may question the kidnapper in an effort to locate the victim even though considerable time may have passed since the kidnapping. This is because kidnap victims have been located alive many months - or even years - after first being kidnapped. Elizabeth Smart was found alive in the company of her kidnapper eight months after her kidnapping. Shawn Hornbeck was found alive in the company of his kidnapper four years after his kidnapping. And Jaycee Lee Dugard was found alive in the company of her kidnapper 18 years after her kidnapping.
Please note the following quotation from People v. Willis:
"Simply stated, the rescue doctrine is to the effect that, where the interrogation of a suspect is undertaken by the police for the paramount reason that information is being sought to save a life, the interrogating officers are justified in not impeding their rescue efforts by informing defendant of his right to remain silent and to the assistance of counsel. The interest in saving a human life is considered to be outside of the parameters of the constitutional protection afforded against self- incrimination." 104 Cal.App.4th at pp. 447-448.
The more recent case of People v. Davis (2009) 46 Cal.4th 539 also held that is it permissible for officers to ask the kidnapper the location of the victim without a Miranda advisement and waiver and can continue the questioning even if the arrestee invokes.
BERGHUIS v. THOMPKINS
(2010) 176 L Ed 2d 1098
WHAT IS A WAIVER? WHAT IS AN INVOCATION?
1. EXPRESS WAIVER IS NOT NECESSARY PRIOR TO INTERROGATION.
2. WAIVER WILL BE IMPLIED BY SUSPECT ANSWERING QUESTIONS.
3. INVOCATION OF RIGHTS MUST BE UNEQUIVOCAL
You wish to interrogate an in-custody suspect. You carefully read to him a standard Miranda advisement and he states he understands his rights. Do you have to obtain from him an express waiver of his Miranda rights prior to beginning your interrogation or can a waiver of his rights be implied simply from his answering your questions? Suppose the suspect says to you, "I don't know whether I should answer your questions or not." Is that an invocation of his Miranda rights?
Van Chester Thompkins was arrested for murder. Southfield, Michigan, police detective Helgert presented Thompkins with a standard Miranda rights card informing him of his constitutional rights and gave him an opportunity to read it. Thompkins was also orally advised of his rights. Thompkins stated that he understood his rights.
Detective Helgert and another officer then began their interrogation. They did not ask Thompkins for a waiver of his Miranda rights. The interrogation took place in a standard interrogation room during daylight hours. At no point during the interrogation did Thompkins state that he wanted to remain silent or that he did not want to talk to the officers or that he wanted a lawyer. For the most part, he remained silent except for a few limited verbal responses such as, "yeah,' "no," or "I don't know." Occasionally he communicated by nodding his head.
About two hours and 45 minutes into the interrogation, Detective Helgert asked Thompkins, "Do you believe in God?" Thompkins made eye contact with Helgert and said "yes" as his eyes welled up with tears. Helgert asked, "Do you pray to God?" Thompkins said "yes." Helgert asked, "Do you pray to God to forgive you for shooting that boy down?" Thompkins answered "yes" and looked away. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later.
Thompkins was charged in court with first degree murder. He moved to suppress the statements he made during his interrogation. He claimed, through his attorney, that he never waived his constitutional rights and in fact had invoked his Fifth Amendment right to silence by remaining silent during the interrogation. His suppression motion was denied, and he was tried and convicted. He appealed, and his appeal was eventually accepted for review by the United States Supreme Court.
RULING AND REASONING
The United States Supreme Court, in a 5 to 4 decision, ruled that Thompkins's confession (i.e. the word "yes") was properly admitted into evidence at trial and affirmed his conviction. (Opinion by Justice Kennedy with Chief Justice Roberts and Justices Scalia, Thomas and Alito joining. Justices Sotomayor, Stevens, Ginsburg and Breyer dissented.)
The Supreme Court first ruled that the evidence was clear that Thompkins was properly advised of his Miranda rights and understood them. It then considered several issues relating to whether Thompkins waived his Miranda rights or invoked them.
It first held that for a suspect to invoke his right to counsel he or she must do so "unambiguously." It said:
In the context of invoking the Miranda right to counsel . . . a suspect must do so unambiguously. If an accused makes a statement concerning the right to counsel that is ambiguous or equivocal or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights. 176 L Ed 2d at p. 1110.
The Supreme Court then pointed out that the requirement of an unambiguous invocation is the same whether the issue is invoking the right to counsel or invoking the right to silence. It said:
There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel. . . . Both protect the privilege against compulsory self-incrimination . . . by requiring an interrogation to cease when either right is invoked. 176 L Ed 2d at p. 1110.
Recounting the facts of this case, the Supreme Court concluded that Thompkins did not invoke his right to silence. It said:
Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning. Here he did neither, so he did not invoke his right to remain silent. 176 L Ed 2d at p. 1111.
The Supreme Court then considered whether Thompkins waived his right to remain silent. It noted that the prosecution must show that the accused waived his right to silence in order for a statement taken during a custodial interrogation to be admissible in court. It said:
Even absent the accused's invocation of the right to remain silent, the accused's statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused in fact knowingly and voluntarily waived Miranda rights when making the statement. 176 L Ed 2d at p. 1111.
But the Supreme Court then pointed out that a waiver of the right to remain silent - and the right to counsel - can be implied "and can be established even absent formal or express statements of waiver." 176 L Ed 2d at p. 1111. It added that "waiver [can be] implied from all the circumstances," and that the burden to establish waiver is "by a preponderance of the evidence." 176 L Ed 2d at p. 1112.
More specifically it said:
The prosecution therefore does not need to show that a wavier of Miranda rights was express. An implicit waiver of the right to remain silent is sufficient to admit a suspect's statement into evidence. . . . A wavier of Miranda rights may be implied through the defendant's silence coupled with an understanding of his rights and a course of conduct indicating waiver. 176 L Ed 2d at p. 1112.
Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent. 176 L Ed 2d at p. 1113.
As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford. 176 L Ed 2d at p. 1113.
Applying this law to the facts of this case, the Supreme Court found that Thompkins impliedly waived his right to remain silent. In this regard it said:
Thompkins's answer to Detective Helgert's question about whether Thompkins prayed to God for forgiveness for shooting the victim is a course of conduct indicating wavier of the right to remain silent. If Thompkins wanted to remain silent, he could have said nothing in response to Helgert's questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation. . . . Police are not required to rewarn suspects from time to time. Thompkins's answer to Helgert's question about praying to God for forgiveness for shooting the victim was sufficient to show a course of conduct indicating waiver. This is confirmed by the fact that before then Thompkins had given sporadic answers to questions throughout the interrogation. 176 L Ed 2d at p. 1114.
The Supreme Court also pointed out that there was no indication whatsoever that Thompkins was coerced in any way. It said that a three hour interrogation in a standard sized room in the middle of the afternoon is not inherently coercive. It also noted that the fact God was mentioned did not render Thompkins' statements involuntary. In this regard it said:
The fact that Helgert's question referred to Thompkins's religious beliefs also did not render Thompkins's statement involuntary. The Fifth Amendment privilege is not concerned with moral and psychological pressure to confess emanating from sources other than official coercion. 176 L Ed 2d at p. 1114.
Defendant Thompkins then asserted in his appeal to the Supreme Court that the officers should have obtained an express waiver of his Miranda rights before asking him any questions.
But the Supreme Court did not agree, and said that it is not necessary for officers to obtain a waiver of Miranda rights at the onset of their interrogation. It noted that there may be many reasons why a suspect might want to hear an officer's questions before deciding whether to invoke or waive his Miranda rights, so an interrogation can proceed until the accused makes his or her decision to waive or invoke. It stated expressly:
After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights. 176 L Ed 2d at p. 1115.
The Supreme Court concluded its discussion of these Miranda issues as follows:
In sum, a suspect who has received and understood his Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins's right to remain silent before interrogating him. 176 L Ed 2d at p. 1115.
APPLICATION TO POLICE WORK
This is an important case. It changes the way officers can conduct interrogations. Here are the main points to take from it.
1. Once officers give a Miranda admonishment and obtain a statement from an in-custody suspect that he understands his rights, the interrogation can begin immediately. Officers do not need to obtain a waiver of Miranda rights before asking questions. They can begin their interrogation as soon as the suspect states he understands his Miranda rights. The suspect's answering of questions will be considered an implied waiver of his Miranda rights.
2. Any invocation of Miranda rights by the suspect - whether the right to counsel or the right to silence - must be unambiguous and unequivocal. The Supreme Court noted in this regard that "If an ambiguous act, omission, or statement, could require police to end the interrogation, police would be required to make difficult decisions about an accused's unclear intent and face the consequences of suppression if they guess wrong." 176 L Ed 2d at p. 1111. Thus, only an unambiguous and unequivocal assertion of the right to remain silent and/or the right to the assistance of counsel will serve to invoke these rights. Unless such an unambiguous and unequivocal invocation of rights is expressed, interrogation can proceed.
3. A waiver of the right to counsel and the right to silence can be implied. If a suspect is given a Miranda admonishment and states he understands his rights and he then answers questions, a waiver of his rights will be implied. As stated above:
Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent. 176 L Ed 2d at p. 1113.
As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford. 176 L Ed 2d at p. 1113.
Note: this is not new law. The California Supreme Court case of People v. Cruz (2008) 44 Cal.4th 636, 667 and other prior California cases have held that a Miranda waiver can be implied. Cruz is summarized in the April 2009 Law Enforcement Legal Reporter (LELR).
4. Officers can refer to God and to a suspect's religious beliefs in the course of an interrogation. Threats of more severe treatment by the authorities if the suspect does not talk, or more lenient treatment if he does, are considered coercion and will render a suspect's statements involuntary. However, reference to a suspect's religious beliefs is not considered official coercion. As noted above, "The Fifth Amendment privilege is not concerned with moral and psychological pressure to confess emanating from sources other than official coercion." 176 L Ed 2d at p. 1114.
So how can Berghuis v. Thompkins be applied to police work? Here is how.
1. When interrogating an in-custody suspect, officers should first administer a Miranda warning and obtain a statement from the suspect that he or she understands his or her Miranda rights.
2. If the suspect does not immediately say unambiguously that he or she wants a lawyer or wants to remain silent officers can then begin asking questions. It is not necessary to ask for a waiver or obtain a waiver of the right to counsel or right to silence at the onset of the interrogation.
3. Officers should make note of any responses made by the suspect, even minor comments such as "yeah" or "no" or "I don't know." Non-verbal responses such as head nods or shakes should also be noted.
4. Any responses, comments, statements, confessions and admissions made by the suspect should be noted. The fact that the suspect made such responses, etc., will be considered by the courts a waiver of the right to counsel and the right to silence. An express waiver need not be obtained. The Miranda case will not preclude such responses, comments, statements, confessions and admissions from being admissible at trial.
A suggested Miranda admonishment and waiver is as follows:
"You have a right to remain silent. Do you understand?"
"Anything you say may be used against you in court. Do you understand?"
"You have the right to the presence of a lawyer before and during questioning. Do you understand?"
"If you want a lawyer but cannot afford to pay, a lawyer will be appointed for you free of charge before any questioning, if you wish. Do you understand?"
Assuming the suspect answers "yes" to all of the "Do you understand questions," officers can then simply begin asking questions. Start with simple questions unrelated to the crime, e.g., "Do you know a girl named Veronica; sometimes people call her Ronnie?" Per Berghuis v. Thompkins, any answers to questions will be considered a waiver of the suspect's Miranda rights.
Please recall also the case of Colorado v. Spring (1987) 479 U.S. 564, 577 which held that a Miranda admonishment need not name the crime(s) the interview will cover. It is perfectly acceptable for officers to arrest a suspect for a minor offense and then interrogate about a more serious crime. "We hold that a suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege." Colorado v. Spring is summarized in the May 2008 LELR.
(2012) 55 Cal.4th 909
VEHICLE STOPS AND SEARCHES
POLICE MAY SEARCH PASSENGER COMPARTMENT IF PASSENGER IS A PAROLEE OR A PROBATIONER WITH A CONSENT SEARCH CONDITION
You stop a car for a traffic violation. There is a driver and a passenger. You recognize the passenger as a parolee. Can you conduct a search of the car - or any part of the car - pursuant to the parolee's search condition?
On November 24, 2006, in Orange County, California, Deputy Sheriff Mihaela Mihai saw defendant Douglas George Schmitz's Buick or Oldsmobile sedan turn into a dead-end alley lined with the garages of a condominium project. When defendant Schmitz made a U-turn in the alley, deputy Mihai pulled her car alongside Schmitz's car and asked if he was lost. After some brief conversation, deputy Mihai got out of her car and asked Schmitz for his driver's license, which he produced. As he did so, Mihai saw that Schmitz's arms were covered by abscesses typical of drug users. She asked if he were on probation or parole and he said no. She asked for permission to search the car but Schmitz did not respond.
There were three passengers in the car - a man in the front seat and a woman and a small child in the back seat. The man said he was on parole. So Deputy Mihai searched the car on that basis. In the backseat area, she found a syringe in a woman's purse, two syringes in a chips bag, and some methamphetamine in a pair of shoes. The contraband items were seized.
Defendant Schmitz - the driver and owner of the car - was charged with various offenses relating to the seized items. He moved to suppress the items, claiming they were found as a result of an unconstitutional search. After the presentation of evidence as set forth above, the suppression motion was denied and Schmitz pleaded guilty to four misdemeanor charges. He then appealed the denial of his suppression motion.
The California Court of Appeal ruled that the suppression motion should have been granted. It asserted that the search based upon the passenger's parole status should have been limited to the front seat area where he was sitting. The prosecution then appealed to the California Supreme Court which agreed to review the case.
RULING AND REASONING
The California Supreme Court reversed the ruling of the Court of Appeal and ruled that Deputy Mihai's search of the backseat area and the items found therein was lawful. (Opinion by Justice Corrigan with Chief Justice Cantil-Sakauye and Justices Baxter and Chin concurring. Justices Werdegar, Kennard and Lui dissented.)
The Supreme Court first noted that all parolees, upon release, are notified that "you and your residence and any property under your control may be searched without a warrant at any time by any agent of the Department of Corrections and Rehabilitation or any law enforcement officer." 55 Cal.4th at p. 916. The California Supreme Court then framed the issues in this case as follows:
Here, we consider the permissible scope of a parole search that infringes on the privacy of a third party driving a car with a parolee passenger. The facts here raise two distinct questions. First, what is the permissible scope of the search of the car's interior? Second, what is the permissible scope of a search of property located in the car? 55 Cal.4th at p. 917.
In answering these questions, the Supreme Court noted that it would be an easy matter for a parolee passenger in a car to secrete items in portions of the interior of the car other than where he is directly sitting. Further, if made aware that officers are seeking to stop the car, he could easily hide items or pass them to other passengers to hide. It said: "A parolee, more than an ordinary passenger, may be expected to conceal contraband or weapons in places other than on his person. . ." It also noted that "Under the Court of Appeal's approach, a parolee passenger could frustrate a valid parole search simply by sitting in the front seat of the car and placing or discarding his belongings in the back. Imposing such an artificially narrow rule frustrates the legitimate goals of parole." 55 Cal.4th at p. 926.
The Supreme Court then set forth its holding regarding the scope of a search when a parolee is a passenger in a car, as follows:
We hold that a vehicle search based on a passenger's parole status may extend beyond the parolee's person and the seat he or she occupies. Such a search is not without limits, however. The scope of the search is confined to those areas of the passenger compartment where the parolee could have discarded items when aware of police activity. Within those limits, the officer need not articulate specific facts indicating that the parolee has actually placed property or contraband in a particular location in the passenger compartment before searching that area. Such facts are not required because the parole search clause explicitly authorizes a search "without cause." 55 Cal.4th at p. 926.
Or, putting it another way:
Considering the layout of a standard five-passenger car, it was objectively reasonable for the officer to expect that this parolee could have stowed his personal property in the backseat, tossed items behind him, or reached back to place them in accessible areas upon encountering the police. Accordingly, under these circumstances, the parolee status of the front seat passenger justified a warrantless search of the backseat area where the chips bag and shoes were located. 55 Cal.4th at pp. 926-927.
And putting it yet another way:
Allowing a search of areas where, under the circumstances, the officer reasonably expects that the parolee could have placed or discarded items furthers the purposes of a warrantless parole search to facilitate close monitoring of the parolee's conduct and to deter the commission of crime. 55 Cal.4th at p. 927-928.
The Supreme Court stressed that an officer need not say that he saw the parolee actually hide items in a particular place. It said:
An officer does not have to articulate facts demonstrating that the parolee actually placed personal items or discarded contraband in the open areas of the passenger compartment. . . . An officer may search only those areas where he she reasonably expects, in light of all the circumstances, that the parolee could have placed personal items or discarded contraband. 55 Cal.4th at pp. 929-930.
The Supreme Court specifically discussed the search of the chips bag and shoes where syringes and methamphetamine were found. The defendant asserted on appeal that the chips bag and shoes obviously belonged to the woman in the back seat and so should not have been searched incident to the male passenger's parole. But the Supreme Court said that since the parolee had access to those items such that he could have hidden something in them, they were searchable. It said:
We hold that an officer conducting a search of a vehicle's passenger compartment based on a passenger's parole status may search items of personal property if the officer reasonably believes that the parolee owns the items or has the ability to exert control over them. 55 Cal.4th at p. 930.
Specifically regarding the chips bag it said, "It was objectively reasonable for the officer to believe that the parolee was able to reach back and conceal contraband inside the chips bag." 55 Cal.4th at p. 931. Regarding the shoes, it said: "It was objectively reasonable for the officer to believe that the parolee was able to reach back to hide contraband inside the shoes." 55 Cal.4th at p. 932.
Regarding the search of the shoes and whether the shoes should have been considered the property of the woman passenger, the Supreme Court raised on interesting point. It noted that if it had been shown that the shoes belonged to the woman, then the driver would not be able to assert that the search of the shoes violated his personal expectation of privacy so he could not object to their search. It said: "As the high court has explained, to claim Fourth Amendment protection, defendant must demonstrate that he personally has an expectation of privacy in the property search." 55 Cal.4th at p. 932.
So if it had been shown the shoes were woman's shoes and in fact belonged to the female passenger, then the defendant would not have had "standing" to object to their search. But the Supreme Court did not rely on this basis to justify the search of the shows. It did so on the basis that the defendant could have reached back and hidden his contraband in the shoes.
The Supreme Court concluded:
Because the officer could search the chips bag and shoes located in the backseat of defendant's car based on the passenger's parole status and applicable search condition, the trial court properly denied defendant's motion to suppress evidence. 55 Cal.4th at p. 933.
Recall - the parolee passenger was not the defendant in this case. The driver, Douglas George Schmitz, was the defendant and the one charged with possession of the contraband items found in the chips bag and in the shoes in the rear seat area of his car. If the driver is a parolee or probationer with a search condition, there is no question that a search of his or her person and car would be lawful.
APPLICATION TO POLICE WORK
So the law is now clear. If officers lawfully stop a car and a passenger is a parolee, then officers may lawfully search any part of the passenger compartment of the car that the parolee might have been able to hide contraband in or given to others to hide. Please note also that the officer need not present facts showing that the parolee actually did hide evidence in any particular place. It is enough for the officer to say that the parolee could have hidden evidence in that place or given it to another to hide. So in the Schmitz case, even though Deputy Mihai did not see the passenger reach back and hide contraband in the chips bag and shoes in the backseat area, the fact that the passenger could have done so is enough to justify their search - and the search of the remainder of the backseat area.
How about searching the glove box based on a passenger being a parolee? If the parolee could have hidden contraband in the glove box, either upon entering the car or when aware that officers were seeking to stop the car, then the glove box can be opened and searched. It seems clear that if officers can search shoes and a chips bag on the backseat, they can certainly search a glove box or other compartment within reach of the parolee.
Please keep in mind also the "standing" issue raised in the Supreme Court's opinion because this is very commonly overlooked. If a defendant claims that an item which was searched does not belong to him, then he lacks standing to object to the search of the item. So it would not matter whether it was lawfully searched or not as far as the case against the defendant is concerned.
When confronted with a motion to suppress evidence, the first word that should pop into the prosecutor's head is "standing." If the defendant cannot show he or she has standing to object to the search of an item or a place, then any suppression motion must be denied. As noted in the Schmitz case, "As the high court has explained, to claim Fourth Amendment protection, defendant must demonstrate that he personally has an expectation of privacy in the property search." 55 Cal.4th at p. 932.
Finally, would it make any difference if passenger Schmitz had been a probationer with a search condition as opposed to a parolee? The Schmitz case did not specifically say that its holding extended to probationers with a search condition. Indeed, it pointed out that "parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." 55 Cal.4th at p. 931.
Nevertheless, the Schmitz case should apply equally to probationers with a search condition. Such a condition typically includes all property under the control of the probationer. Per the Schmitz case, a passenger has control of all areas of the passenger compartment of a vehicle accessible to him. So a probationary consent search condition should justify a search of the passenger compartment of a vehicle the same as a parole search condition.
If Schmitz himself had been the person with either a probation or parole search condition, then there would have been no issue as to the lawfulness of the search of his car. A parole or probation search condition clearly encompasses a motor vehicle owned and operated by a parolee or probationer.
note: all California parolees have a search condition imposed pursuant to
Penal Code section 3067, subd.(b)(3). But not all probationers have a search
condition. So officers must first determine that a probationer has a search
condition before conducting a probation consent search. And recall also
that a later discovery that a person is subject to either a parole or probation
search condition will not "cure" an otherwise invalid search.
See In re Jaime P. (2007) 40 Cal.4th 128, which so holds. So officers
must determine that a suspect is a parolee or is a probationer with a search
condition before conducting a search pursuant to the search condition.
PEOPLE v. HAIRSTON
(2009) 174 Cal.App.4th 231
DEFENDANT'S FLIGHT FROM
THREE OFFICERS IS THREE
COUNTS OF RESISTING ARREST
You seek to arrest a suspect for a crime.. Two other officers are present to assist you. The suspect flees and is chased by all three of you before being cornered and captured. Has he committed just one violation of Penal Code section 148, subd.(a)(1) - willfully resisting and delaying a peace officer - or three violations of this section? Why is it important for officers to know the answer to this question?
Suppose while chasing a fleeing suspect, you trip and fall and break your wrist. Is there any charge that can be filed against the suspect because of this injury - or is it just one of the risks of your job?
Anthony Jerome Hairston got into a verbal dispute with another man. He threatened the man, and he and a companion both displayed handguns to the man. He then drove off. The man called 911 and reported the crime. He also described Hairston and the car Hairston was in. Based upon this, a radio call was put out to Sacramento County Sheriff's deputies regarding the reported crime.
About 15 minutes after hearing the radio call, Deputy Donny Vettel noticed he was driving behind Hairston's car. Defendant Hairston pull into an apartment complex and parked his car. Deputy Vettel turned on his red lights. The defendant and a passenger got out of their car and ran. Deputy Vettel yelled at them to stop, but they ran around a building and out of sight.
At the same time, Deputy Robert Patton was driving by the apartment complex. He saw defendant Hairston and anther man running through the apartment complex and jump over a wall. Deputy Patton got out of his patrol car, confronted the men and identified himself. He ordered the two men to put their hands over their heads. The defendant and the other man looked at Deputy Patton and then they jumped back over the wall and continued running through the apartment complex.
At this point, Deputy Robert White arrived to assist the other deputies. As he was driving around the apartment complex, defendant Hairston ran towards Deputy White's patrol car. His right hand was in his pants. Deputy White slammed on his brakes, got out of his car, pointed his gun at Hairston and ordered him to stop. Hairston did not stop but instead turned and ran through a parking lot, behind a concrete retaining wall and out of Deputy White's sight.
Seconds later, defendant Hairston ran around the retaining wall and jumped over a fence into a park. Both of his hands were now visible. Deputy White jumped the fence, pointed his gun at the defendant and told him to lie down and give up. Hairston did as ordered. A .38 caliber handgun was found behind the retaining wall where the defendant had run.
The defendant was charged with various offenses including criminal threats with personal use of a handgun for his initial threats against the civilian victim. He was also charged with three counts of resisting arrest in violation of PC 148, subd.(a)(1) - one count for each of the three deputies who pursued him at the apartment complex.
He was convicted of all offenses and sentenced to 13 years in prison - three years for the criminal threats charge and an additional ten years for personal use of a handgun. He was also sentenced to three concurrent one year terms in the county jail for the three resisting arrest convictions. He appealed.
RULING AND REASONING
The Court of Appeal affirmed all convictions - including the three counts of resisting arrest. (Third District. Opinion by Justice Nicholson with Presiding Justice Scotland and Justice Robie concurring.)
The Court of Appeal affirmed the criminal threats conviction and the personal use of a handgun enhancement in an unpublished portion of its opinion.
Regarding the three counts of resisting arrest, the defendant, through his attorney, claimed that since the defendant had engaged in only one course of conduct in fleeing from the deputies, he should only have been convicted of one count of resisting arrest.
But the Court of Appeal did not agree. It said:
A defendant can be convicted under section 148 for each peace officer he obstructs, even if he engages in only one act of obstruction. This rule is found in subdivision (e) of section 148. The statute reads, in pertinent part: "A person may be convicted of multiple violations of this section [section 148] if more than one public officer, peace officer, or emergency medical technician are victims." 174 Cal.App.4th at p. 238.
The Court of Appeal explained further:
Even if defendant's acts of resisting were one continuous act . . . section 148 expressly states a defendant can be convicted for each officer whose exercise of duty he resists. 174 Cal.App.4th at p. 239.
The Court of Appeal gave its view as to why this was "good policy" as follows:
The facts of this case highlight why section 148, subdivision (e), is good policy. The pursuing deputies attempted to apprehend defendant while knowing he might have been armed, and one of the deputies drew his weapon to make the arrest. Defendant put himself, the deputies, and the public at risk of harm each time, and in each place, he refused to obey the deputies. He conduct in this case makes him more culpable than a person who resists arrest by only one officer in one location. 174 Cal.App.4th at p. 238.
The Court of Appeal concluded as to the three resisting count convictions:
The evidence shows defendant resisted arrest by three different peace officers. Under the express language of section 148, defendant could be convicted for each officer whose exercise of duty he resisted. 174 Cal.App.4th at p. 239.
The Court of Appeal then considered whether the defendant could be punished separately for each of the three resisting convictions. It expressed the law regarding separate punishments for multiple offenses committed in the same course of conduct as follows:
If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. 174 Cal.App.4th at p. 231.
Applying this law to the facts of this case, the Court of Appeal concluded that the defendant did have separate objectives in fleeing from each officer and thus could be sentenced for each resisting conviction. It stated:
Defendant formed a new and independent intent with each officer he encountered. Moreover, each encounter by an armed peace officer and an armed, fleeing felon carried with it the potential for death or great bodily injury for the officer, for defendant, and for differing sets of residents of the apartment complex where the three encounters occurred. We conclude on the facts of this case that substantial evidence supports the trial court's implicit determination that defendant had a separate objective for each violation of section 148. 174 Cal.App.4th at p. 240.
APPLICATION TO POLICE WORK
It is common in resisting situations for it to take the efforts of several officers to subdue the suspect. The Hairston case and Penal Code section 148, subdivision (e) state clearly that a separate count of violation of PC 148, subdivision (a)(1) can be filed as to each officer involved in the pursuit, capture and subduing of the suspect.
But in order for the trial court to sentence the defendant separately for each resisting conviction, it must be shown that the defendant formed a new and independent intent to resist with each officer he encountered - and not simply that he fled from a group of officers pursuing him. In the Hairston case, because the defendant encountered and fled from the three deputies separately, the Court of Appeal found that he did have a separate objective for each of the three violations of section 148. The first objective was to resist Deputy Vettel, the second was to resist Deputy Patton and the third was to resist Deputy White. Thus, he was sentenced for each violation of section 148 and could have received consecutive terms had the trial court judge decided to impose them.
In the Hairston case, since the defendant received a 13 year sentence in state prison for the criminal threats and personal use of a firearm charge, the concurrent sentences for the resisting counts add nothing to the sentence he will serve. But in a situation where the defendant is convicted solely of resisting counts or of resisting and perhaps another misdemeanor, consecutive sentences for multiple counts of resisting can add up.
So it is important for officers to understand the Hairston case so that in their reports of resisting situations they make clear that the defendant resisted officers individually - and not merely as a group - if that is what happened - in order to justify separate sentences for resisting. As in the Hairston case, the reports should describe how each officer tried to arrest the suspect and how the suspect resisted that particular officer's efforts to arrest him - if that is what occurred. The reports should not simply say that the defendant resisted the efforts of officers A, B and C to arrest him. The reports should describe clearly how the defendant resisted each of the officers individually if that is what occurred.
Regarding tripping, falling and breaking your wrist while chasing a suspect - is there any charge that can be filed against the suspect? The answer is yes. In the case of People v. Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525 one officer chasing a fleeing suspect fell and broke his arm and a second officer fell and suffered torn back muscles and a fracture of his left wrist.
The Court of Appeal held that in such circumstances, the defendant can be convicted of "Willful Resistance with Injury" in violation of PC 148.10 - a 2, 3 or 4 year felony. Flight from a lawful arrest or detention is considered "willful resistance." The Court of Appeal held that the crime of PC 148.10 had been committed and that it did not matter that the injuries were suffered as a result of a fall or some other accidental cause and were not the direct result of any intentional actions by the suspect to injure the pursuing officers. The Ferguson case is summarized in the March 2006 Law Enforcement Legal Reporter.
(2009) 176 Cal.App.4th 255
CARPORT CAN BE AN
You respond to a call of a prowler in the carport area of an apartment house. You capture him hiding behind a parked car. He has a screwdriver in his pocket. He is carrying a cell phone. A tenant identifies the cell phone as having been taken from his car. What information will the prosecutor want to know in order to determine what charges to file against the prowler?
Residents of an apartment house saw a man looking into cars parked in the carport. The carport is located on the ground floor directly beneath the dwelling units. It has sides and a back wall which are part of the apartment house structure but is open on the front so that cars can enter it and park within. The dwelling units are accessible by stairways leading from the carport to the dwelling units. The residents watched as the man got in and out of the front and back seat of a red car in the carport. One resident called 911 and stayed on the phone as the police arrived and apprehended the man. He was found to have removed a stereo unit from the red car. He also had a screwdriver in his possession.
The man, Richard Thorn, was charged with first degree residential burglary of an inhabited dwelling house, Penal Code section 460, and other offenses. The burglary charge was based upon his entering the carport area of the apartment house to steal items from cars within the carport. He was convicted of this charge and several others. He appealed, claiming that the carport was not an inhabited dwelling house.
RULING AND REASONING
The Court of Appeal ruled that the carport was an inhabited dwelling house within the meaning of PC 460 and affirmed the conviction for that offense and the other offenses. (First District. Division Three. Opinion by Justice Jenkins with Presiding Justice McGuiness and Justice Siggins concurring.)
The Court of Appeal first referred to PC 459 which provides that "every person who enters any house, room, apartment, tenement . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." It then referred to PC 460 which says that "every burglary of an inhabited dwelling house . . . is burglary of the first degree." It again referred to PC 459 which says that "'inhabited' means currently being used for dwelling purposes, whether occupied or not." Thus, a conviction for first degree burglary requires entry of an inhabited dwelling house with the intent to commit a felony or theft. 176 Cal.App.4th at p. 261.
Defendant Thorn contended on appeal that the carport area of the apartment house was not "an inhabited dwelling house." But the Court of Appeal disagreed. It first found that the carport was "contiguous to and functionally interconnected with the inhabited apartment building." Thus, it was "part of" the inhabited dwelling house. 176 Cal.App.4th at p. 262.
Further, the area within the carport was "an area into which a reasonable person would believe that a member of the general public could not pass without authorization." 176 Cal.App.4th at p. 264. In reference specifically to Thorn's entry into the carport, the Court of Appeal said:
Indeed, that the carport at issue here was recognized as "an area into which a member of the general public could not pass without authorization" is further evidenced by the reaction of the residents when they saw Thorn lurking therein - they concluded he was up to no good and immediately called the police. Thorn's entry into the carport, therefore, violated both the occupant's possessory interest and his or her personal interest in freedom from violence that might ensue from unauthorized intrusion. Thus . . . Thorn's entry into the carport amounts to an entry of the building within the meaning of the burglary statute. 176 Cal.App.4th at p. 265.
The Court of Appeal listed many other garage or carport type structures which had been held to be inhabited dwelling houses for burglary purposes in prior cases. In these cases, the areas entered, although not specifically living quarters, were nevertheless functionally connected to and immediately contiguous to the living quarters - such as storage rooms and garages attached to a residence - and were areas into which a reasonable person would believe that a member of the general public could not enter without authorization. This even includes laundry rooms that are within an apartment house. 176 Cal.App.4th at pp. 262-263.
APPLICATION TO POLICE WORK
Generally, any structure, area or room within or attached to any part of an inhabited dwelling - whether a single family residence, duplex, or apartment house - will be considered an inhabited dwelling house within the meaning of PC 459 and PC 460 and the entry into such place with the intent to commit a felony or theft is first degree residential burglary.
Thus, burglary of a garage attached to a residence is first degree burglary and is punishable by up to six years in state prison (and is a "strike"), whereas burglary of a detached garage is second degree burglary and is punishable by one year in the county jail or three years in state prison.
In evaluating charges to be filed in garage or storage room burglary situations, the prosecutor will want to know whether the area entered was part of, within or attached to the dwelling unit. He or she will need to know this to determine whether to file first or second degree burglary charges. So the burgled premises should be described thoroughly in police reports.
Also in garage burglary situations the prosecutor will want to know if any cars were entered and if so whether they were locked. Entry into a locked car to commit a felony or theft is a separate burglary. Officers should also examine carefully any items found on a burglar caught in the act to see if he or she is in possession of burglary tools. Possession of burglary tools can also be alleged as a separate count.
Burglars are notorious repeat offenders and often use false names. Indeed, Richard Thorn had six prior felony convictions - two or which were strikes - and first identified himself by a false name. So it is important to determine the true identify of persons arrested for burglary and to run a thorough record check so that all applicable prior convictions can be alleged. Prior convictions can be used to increase the bail amount and can add considerably to the burglar's sentence.
IN RE RICHARD G.
(2009) 173 Cal.App.4th 1252
OK TO DETAIN A SUSPECT ON
AN ANONYMOUS CALL; OK
TO PROSECUTE A SUSPECT FOR
A CRIME COMMITTED DURING
AN UNLAWFUL DETENTION.
Problem #1: While on patrol, you receive a radio call that an anonymous caller to the police department just reported seeing a man possibly carrying a gun on the street. The man and his clothing were described in detail and the exact location of the man and the direction in which he was walking was given. You are near the location and arrive there within two minutes. You see the described man walking down the street. Can you stop and frisk him?
Problem #2: You detain a man. During the course of the detention, he resists. Suddenly he pulls a gun and fires two shots at you. Fortunately, they miss. You and your partner are able to overpower and disarm the suspect. The case is presented to the district attorney's office, and you are informed you had an insufficient factual basis for the initial detention - that it was an unlawful detention. Does this mean that the suspect cannot be prosecuted for shooting at you?
Oxnard Police Officers Mora and Alva were on routine patrol in the Colonia area of Oxnard at about midnight on June 21, 2007. They received a radio dispatch that an anonymous caller had reported that two males were causing a disturbance outside the residence at 133 North Juanita Street and that one of them "was possibly in possession of a handgun." The males and their clothing were described in detail. The males were reportedly walking towards Colonia Park, which is across the street from the North Juanita Street residence. Officer Mora recognized the address. Earlier that week he had responded to a call of a daytime shooting at the same residence and two guns were seized on that occasion.
Officers Mora and Alva drove around Colonia Park and within a few minutes they saw the two described males along with two females walking near the park. The males were wearing clothing which matched exactly the description given in the radio dispatch. The officers radioed for backup.
Officers Mora and Alva got out of their patrol car and made contact with the group. The officers ordered the males to stop, but they refused to do so. Because the officers believed one of the males might be in possession of a gun, the officers repeated their commands and told the males to sit on the ground. Richard G., a juvenile, was one of the males. He repeatedly refused to obey any of the officers' commands. He told Officer Mora, "I'm going to fuck you up . . ."
When Mora grabbed Richard G. to put him in a control hold, Richard resisted and punched Officer Mora. A fight ensued and Richard was eventually overpowered but not before he caused visible injuries to Officer Mora.
Richard G. was charged in juvenile court with disturbing the peace in violation of PC 415, subd. (3), for using offensive language to Officer Mora. He was also charged with delaying a peace officer, PC 148 and resisting an executive officer, PC 69.
Richard, through his attorney, sought to suppress evidence of his conduct and statements claiming that officers lacked legal justification for his detention. He noted that the information provided by the police dispatcher had been given by an anonymous caller. The Superior Court judge denied the suppression motion and Richard admitted the allegation of disturbing the peace. The other charges against him were dismissed. He then appealed.
RULING AND REASONING
Court of Appeal ruled that the officers had legal justification for the
detention of Richard G. and affirmed his conviction. The Court of Appeal
also ruled that even if the officers did not have legal justification for
Richard G.'s detention, he could still be held criminally liable for any
crimes committed by him during the course of even an unlawful detention.
(Second District. Division Six. Opinion by Presiding Justice Yegan with
Justices Coffee and Perren concurring.)
The Court of Appeal first noted that as a general principle of law:
A police officer may stop and detain a person if the officer knows of specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. The officer must have a "reasonable suspicion" that the person to be detained has violated the law. 173 Cal.App.4th at p. 1257.
The Court of Appeal referred to the decision of the California Supreme Court in the case of People v. Dolly (2007) 40 Cal.4th 458 (summarized in the March 2007 Law Enforcement Legal Reporter (LELR)). In the Dolly case, an anonymous caller reported that he had just been threatened with a firearm and provided a detailed description of his assailant and the assailant's car and its location. Within five minutes police arrived at that location and saw the car and its driver. The driver was ordered to exit, and his car was searched and a handgun was found concealed under the front passenger seat.
The California Supreme Court upheld the driver's detention reasoning that officers properly acted upon the anonymous report because it described "a grave and immediate risk not only to the caller but also anyone nearby." The California Supreme Court found the anonymous call to be reliable because it was a "firsthand, contemporaneous description of the crime as well as an accurate and complete description of the perpetrator and his location, the details of which were confirmed within minutes by the police when they arrived." 173 Cal.App.4th at p. 1257, quoting from People v. Dolly, 40 Cal.4th at pp. 465 and 468.
Applying this law as set forth in the Dolly case, the Court of Appeal found the detention of Richard G. to be lawful. It said:
In the [Richard G.] case, an anonymous caller gave a contemporaneous report of a late night disturbance involving a firearm that occurred in front of a specific residence located in known gang territory. The caller described the individuals involved and their clothing, and reported that they were walking toward Colonia Park. The officers knew this park was frequented by members of the Colonia Chiques street gang. Only days before, officers investigated a shooting at the same residence and seized two firearms. In our view, the anonymous telephone report at issue here is every bit as reliable as the report described in Dolly, if not more so. This dictates affirmance of the trial court's finding that the officer did not violate [Richard G.'s] Fourth Amendment rights. 173 Cal.App.4th at pp. 1257-1258.
The Court of Appeal then considered whether Richard G. could be found criminally liable for any crimes committed by him during the course of his detention assuming the police did not have legal justification for the detention. It noted that the exclusionary rule normally works to suppress evidence discovered as a result of an unlawful detention. But it then said that there were limitations to the exclusionary rule which it described as follows:
One such limitation is that the rule does not immunize crimes of violence committed on a peace officer, even if they are preceded by a Fourth Amendment violation. For example, would the exclusionary rule operate to exclude testimony that an unlawfully arrested person shot the arresting police officer? The answer is plainly, no. A person who is detained illegally is not immunized from prosecution for crimes committed during his detention. A person does not have a license to kill a police officer merely because the officer arrested him without probable cause. 173 Cal.App.4th at p. 1261, internal cites and quotes omitted.
Or, putting it another way:
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. 173 Cal.App.4th at p. 1262.
So Richard G. could still have been convicted of PC 415 against Officer Mora even if his detention had been without lawful justification.
APPLICATION TO POLICE WORK
An anonymous call that someone has a concealed gun - without more - usually will not justify the detention and frisk of the person. That is the case of Florida v. J.L. (2000) 526 U.S. 266, summarized in the May 2000 LELR.
But the Dolly case, and now the case of In re Richard G., makes clear that officers may detain a person based on an anonymous call providing the caller is giving a contemporaneous, detailed and first hand description of his or her observations and the information provided makes clear that the suspect constitutes a grave and immediate risk to himself or anyone nearby. Any details that can be corroborated by the responding officers - such as the location and description of the suspect(s) - should be corroborated before actually making a detention. A frisk requires information justifying a reasonable belief the suspect has a weapon on his person.
The Dolly and Richard G. cases are of particular importance because of the proliferation of cellular telephones. In the days before cell phones a witness to a crime would have to find a telephone to report a crime. This could take many minutes.
Whereas with a cell phone in hand, a witness to a crime can instantly call the police and report what just happened or what is presently happening. So police agencies are now getting contemporaneous reports of criminal activity much more so than in the past. The Dolly and Richard G. cases say that officers can act upon such reports even if the callers choose to remain anonymous.
This case also makes clear that it is important for 911 operators to get as much information from a caller as possible. Descriptions of what the caller saw, when he or she saw it, the perpetrator(s), the location, weapons observed, the vehicle(s), any particular identifying characteristics and why the caller wishes to remain anonymous if that is the case. All this should be recorded and a tape and transcript of the call should be available for court. The tone of the caller's voice and its state of excitement can be important in establishing that the police were justified in believing that a caller was truthful versus someone who might be calling in a hoax.
Finally, if a phone tipster does give his name, numerous prior cases have held that this gives additional reliability to his or her statement even though the person could be lying about his name and the police do not have time to verify his identity. So if a name is given, it should be noted. In the case of United States v. Terry-Crespo (9th Cir. 2004) 356 F.3d 1170, the report of a man with a gun by an excited 911 caller who gave his name justified the stop and frisk of a man matching the description and who was at the indicated location. Terry-Crespo is summarized in the July 2004 LELR.
How about situations where police are approached on the street by a citizen who reports criminal activity. Can the police act on that information? The answer is yes. The case of People v. Coulombe (2000) 86 Cal.App.4th 52 held that police can detain and patdown a suspect based upon in-person reports from two citizens who said they just saw the suspect carrying a gun. The police can act immediately upon this information and need not get the names of the citizens or maintain contact with them. The immediate detention and pat down of the described person - resulting in the recovery of a concealed gun - was ruled to be valid. Columbe is summarized in the July 2001 LELR.
There are two factors of major importance in all of these cases. The first is that the tipster was reporting something that just happened - a contemporaneous report of criminal activity. The second factor is that the report was of dangerous or potentially dangerous criminal activity requiring immediate response on the part of responding officers to neutralize the threat posed by the criminal activity. These factors should be noted in all reports of similar situations.
ARIZONA v. GANT
(2009) 173 L Ed 2d 485
VEHICLE STOPS AND SEARCHES
CAR SEARCH INCIDENT
TO ARREST OF
OCCUPANT IS LIMITED
One of the officers at your station tells you that there is a new United States Supreme Court decision that says you can no longer search the passenger compartment of a car incident to the arrest of an occupant of the car. Is this true?
It is partly true. Here is what the U.S. Supreme Court ruled in the case of Arizona v. Gant:
Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. 173 L Ed 2d at p. 501.
In the Gant case, officers were aware that Rodney Gant had a suspended driver's license and an outstanding arrest warrant for driving on a suspended license. They arrested him as he drove into the driveway of his residence. He was handcuffed and put into the back seat of a patrol car. His car was then searched and a baggie of cocaine was found in a jacket pocket.
Gant was charged in Arizona state court with possession of a narcotic drug for sale. Through his attorney, he sought to have the cocaine suppressed, asserting that the search of his car was unconstitutional. The Arizona state court judge said the search was valid pursuant to the 1981 United State Supreme Court case of New York v. Belton (1981) 453 U.S. 454. In particular, the Belton case stated: "We hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." 453 U.S. at p. 460. Gant was convicted and sentenced to three years in prison. He appealed.
Arizona v. Gant was eventually accepted for review by the United States Supreme Court. In a 5-4 opinion written by Justice Stevens, the Supreme Court limited the Belton case. It ruled that police cannot search a vehicle incident to the arrest of an occupant when the arrestee is no longer within reaching distance of his vehicle or if there is no reason to believe that evidence relevant to the arrest offense might be found in the vehicle. More specifically, it said:
We hold that Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle. . . . We also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. 173 L Ed. 2d at p. 491.
Applying this law to the search of Gant's car, the U.S. Supreme Court concluded:
Because police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable. 173 L Ed 2d at p. 497.
APPLICATION TO POLICE WORK
To summarize: when an occupant or recent occupant of a vehicle is arrested and secured so that he or she is no longer within reaching distance of the passenger compartment of the vehicle, the vehicle cannot be searched incident to the arrest unless it is reasonable to believe that evidence relating to the arrest offense might be within the vehicle or there is some other lawful basis for searching the vehicle.
This case will have its most common application when a motorist is arrested solely for a traffic violation or a traffic warrant. In such an instance, there will be no basis for believing that evidence of the crime will be found in the car, so it cannot be searched incident to that arrest.
Indeed, the U.S. Supreme Court specifically referred to traffic violations as crimes where a search incident to the arrest now would be unjustified, to wit: "In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence." 173 L Ed2d at p. 496.
Also, since almost always a vehicle occupant who has been placed under arrest will be taken away from the vehicle, the arrestee will not be within reaching distance of the vehicle so as to justify an officer's search of it. The U.S. Supreme Court addressed this specifically also and said:
Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee's vehicle remains. . . . But in such a case a search incident to arrest is reasonable under the Fourth Amendment. 173 L Ed 2d at p.496, fn. 4.
So if, for whatever reason, the arrestee cannot be secured away from his vehicle and remains within reaching distance of its passenger compartment, then the passenger compartment of the vehicle can be searched. This is to prevent the unsecured arrestee from gaining access to a weapon that might be in the vehicle.
Arizona v. Gant would also permit the search of the passenger compartment of a vehicle following the arrest of an occupant or recent occupant if the arrest was based upon an officer's observation of illegal drugs or weapons within the vehicle. This would make it "reasonable to believe the vehicle contains evidence of the offense of arrest" and so would justify a search of the passenger compartment of the vehicle for additional drugs or weapons. .
For example, in the Belton case itself, defendant Belton was arrested for possession of marijuana based upon the odor of burnt marijuana and other observations establishing probable cause to believe there was marijuana within his car. Arizona v. Gant specifically stated that this justified the search of the passenger compartment of Belton's car and any containers therein for evidence of the arrest offense. 173 L Ed 2d at p. 496.
What about a motorist arrested for DUI. Can his or her vehicle be searched for evidence of the arrest offense? The answer is yes. It is very common for a DUI driver to have alcoholic beverage containers - either full, empty or partly full - in his or her vehicle. These would be evidence of the arrest offense and so could lawfully be searched for and seized.
Arizona v. Gant also said that other legal justifications for the search of a vehicle set forth in prior cases remain valid.
Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand. For instance, Michigan v. Long, 463 U.S. 1032 (1983), permits an officer to search a vehicle's passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is "dangerous" and might access the vehicle to "gain immediate control of weapons." 173 L Ed 2d at p. 498.
Or if the vehicle occupant is arrested based upon probable cause to believe that he had recently committed a robbery or burglary, the car could be searched for evidence of those offenses. "If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820-821, authorizes a search of any area of the vehicle in which the evidence might be found." 173 L Ed 2d at p. 498.
So there remain many exceptions to the requirement of a search warrant to search a vehicle. As noted in Arizona v. Gant, "These exceptions together ensure that officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle's recent occupant justify a search." 1734 L Ed 2d at pp. 498-499.
So the bulk of case law regarding auto searches is unchanged by Arizona v. Gant. Indeed, Gant made just one major change. Under Gant, officers cannot search an auto incident to the arrest of an occupant when there is no reasonable basis for believing that evidence of the arrest offense will be found within the vehicle and the arrestee is not within reaching distance of the passenger compartment of the vehicle at the time of the search - and there is no other lawful justification for searching the car.
As noted previously, this case will have its most common application in cases where motorists are arrested solely for traffic warrants or traffic violations such as driving with a suspended license. Per Arizona v. Gant, a search of the car incident to that arrest now will be unjustified.
But note: there is more than one way to skin a cat. If a motorist is arrested for driving with a suspended license or no license it is likely the car can be impounded, particularly if the car cannot be left safely parked where it is and there is no one available to lawfully drive the car to a secure location. In such an instance, an inventory search of the vehicle would be lawful and would include a search of the passenger compartment and the trunk.
PRACTICE TIP: If there is more than one legal basis for searching a car, all should be expressed in the police reports and presented in court. That way, if one basis for searching the car is declared invalid, the search might nevertheless be upheld on another basis.
(2006) 38 Cal. 4th 1070
OK TO STOP A DESCRIBED CAR BASED
SOLELY UPON AN ANONYMOUS CALL
REPORTING ERRATIC DRIVING
While on patrol you are informed over the radio that a described car has been reported by an anonymous caller as "weaving all over the roadway." The location and direction of the car is provided. You are nearby so you position yourself to intercept the described car. You see it. It is driving normally and in full compliance with all traffic laws. Can you stop the car in order to check out the anonymous report? Or do you personally have to see a traffic violation or some suspicious conduct before you can stop the car?
At 1:43 a.m., California Highway Patrol officer Julian Irigoyen was on patrol on Highway 99 in Kern County. He received a radio report of a possibly intoxicated driver "weaving all over the roadway." The suspect vehicle was described as an 80's model blue van traveling northbound on Highway 99 at Airport Drive.
Officer Irigoyen was north of Airport Drive so he positioned himself on the shoulder of northbound Highway 99 and watched for the described van. After two or three minutes, he saw a blue van traveling northbound at about 50 miles per hour. He immediately activated his patrol car lights, and the van came to a stop. Officer Irigoyen had observed no weaving or any other traffic violation.
Defendant Susan Wells was the driver of the van. She displayed symptoms of being under the influence of drugs. After field sobriety tests, she was arrested for violation of VC 23152(a). Later, her urine tested positive for THC, cocaine and opiates. During a search of the van, officers found a suitcase containing syringes and heroin.
Defendant Wells was charged with DUI and other offenses relating to the seized items. In Superior Court, she sought suppression of the officer's observations of her and the seized items on the grounds of unreasonable search. She claimed there was no lawful basis for the stop of her van. Her suppression motion was denied, and she was sentenced to prison. She appealed, and the matter was eventually accepted for review by the California Supreme Court.
RULING AND REASONING
California Supreme Court, in the 4-3 opinion, ruled that the traffic stop
of Wells's van and her subsequent arrest were valid. (Opinion by Justice
Chin with Chief Justice George and Justices Corrigan and Croskey concurring.
Justices Werdegar, Kennard and Moreno dissented).
The California Supreme Court framed the issue in this case as follows:
Does an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver afford a police officer reasonable suspicion sufficient to justify a temporary detention to investigate further? 38 Cal.4th at p. 1082.
As will appear, we have concluded that, under the circumstances of this case, the grave risks posed by an intoxicated highway driver justified the minimal intrusion of a brief investigatory traffic stop. 38 Cal.4th at p. 1082.
In arriving at this conclusion, the Supreme Court first restated existing law that "an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law." 38 Cal.4th at p. 1082.
It then defined "reasonable suspicion" as follows (note: this definition applies equally to the detention of persons on foot):
Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip. But to be reasonable, the officer's suspicion must be supported by some specific, articulable facts that are reasonably consistent with criminal activity. The officer's subjective suspicion must be objectively reasonable, and an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. But where a reasonable suspicion of criminal activity exits, the public rightfully expects a police officer to inquire into such circumstances in the proper exercise of the officer's duties. 38 Cal.4th at p. 1083, internal cites and quotes omitted.
The Court set forth three factors to consider in determining whether a traffic stop is justified following an anonymous tip of erratic driving.
First, the tipster must furnish sufficient identifying information regarding the vehicle and its location, so the officer and reviewing courts may be reasonably sure the vehicle stopped is the one identified by the caller. Second, the tip should indicate the caller had actually witnessed a contemporaneous traffic violation that compels an immediate stop, rather than merely speculating or surmising unlawful activity. And third, at least the "innocent details" of the tip must be corroborated by the officers. 38 Cal.4th at p. 1086.
Referring to the facts of the instant case, the Supreme Court noted that "Officer Irigoyen could reasonably believe that the blue van described in the dispatched tip was the same car he eventually stopped, as it matched the description, and was traveling in the same direction and at the same time and location as described." 38 Cal.4th at p. 1083.
The Supreme Court also felt that the facts of this case reasonably suggested that the informant was an eyewitness to the driving he described, i.e., "weaving all over the roadway."
And those "innocent details" which could be corroborated were corroborated, to wit: the officer's observations of the described 80's model blue van driving on a certain roadway at a certain time in a certain direction.
The Supreme Court also noted that "the level of intrusion of personal privacy and inconvenience involved in a brief vehicle stop is considerably less than the embarrassing police search on a public street . . ." 38 Cal.4th at p. 1087.
The Court also considered that the fact Officer Irigoyen did not see erratic driving by the defendant was "not significant." In this regard it noted that, "Motorists who see a patrol car may be able to exercise increased caution." 38 Cal.4th at p. 1088.
The Supreme Court also stressed the importance of getting drunk drivers off the street immediately. It said, "Indeed, a drunk driver is not at all unlike a 'bomb,' and a mobile one at that." 38 Cal.4th at p. 1086.
Putting it all together, the Supreme Court summarized its ruling as follows:
Viewing the totality of circumstances in the present case, we are convinced that the officer's traffic stop was justified by reasonable suspicion of criminal activity. . . . [T]he tipster's information regarding the van and its location was sufficiently precise, and its report of a motorist "weaving all over the roadway" demanded an immediate stop to protect both the driver and other motorists. The tip reported contemporaneous activity and its "innocent" details were fully corroborated within minutes of the report. 38 Cal.4th at p. 1088.
APPLICATION TO POLICE WORK
The holding of this case is clear: an anonymous tip describing contemporaneous erratic driving, describing the car, describing the location of the car and its direction of travel justifies a stop of the car by a police officer. The officer must be reasonably certain that the car he is stopping is the one described by the caller. The officer need not see any independent violation himself or herself.
This case is much like Lowry v. Gutierrez (2005) 129 Cal.App.4th 926, summarized in the October 2005 Law Enforcement Legal Reporter. That case involved a caller using a cell phone to describe a car, its driver and its erratic driving in detail. The Court of Appeal upheld the stop and subsequent arrest of the driver using much of the same reasoning as in People v. Wells. The Wells case differs from the Gutierrez case in that the description of the car and the driving was much less detailed in Wells than in Gutierrez.
In both Lowry v. Gutierrez and People v. Wells, the respective appellate courts distinguished their factual situations involving a report of a suspected DUI driver from the U.S. Supreme Court case of Florida v. J. L. (2000) 146 L Ed 2d 254, which involved an anonymous telephone tip that a described man standing at a particular bus stop had a gun concealed on his person. The U.S. Supreme Court ruled in that case that an immediate detention and frisk of that man based solely upon the anonymous tip was an unreasonable search under the Fourth Amendment.
But in the Gutierrez and Wells cases, the Courts held that an anonymous tip of erratic driving is more likely to be accurate because it involves criminality occurring out in the open rather than a gun concealed on a person. Further, a brief stop of a motorist is much less of an imposition than the stop and frisk of a person on foot. Also a person with a concealed gun may not be an immediate threat whereas a person driving under the influence is a "mobile bomb" risking death or injury with every passing moment. So these policy reasons also constituted part of the Courts' reasoning approving the stop of cars based solely upon anonymous tips.
As a matter of practice, dispatchers and 911 operators should be trained to get as much detail as possible from persons calling to report suspected DUI drivers. The more detailed the description of the driving, the vehicle, the driver, the location of the car and the direction of travel, the more likely the Courts will find that the officer had reasonable suspicion justifying the stop of the car. The officer need not wait until he or she sees an independent violation since doing so increases the chances of a DUI driver crashing and injuring himself or herself or others.
Finally, when a motorist is stopped based upon an anonymous tip officers should exercise their usual professionalism and courtesy in approaching and speaking to the motorist. It might be that the driver is not DUI. The anonymous tipster may have misinterpreted the driving that he saw or the officer might be stopping a car that appears to be the one described in the call but in fact is not. In such instances, if it appears the motorist is not DUI, he or she should be allowed to go on his way.