Criminal Appeal

Traffic Stops and Temporary Operating Permits

A police officer initiated a traffic stop because the vehicle he observed had expired registration tags on its license plates. The officer subsequently discovered drugs in the vehicle and arrested the driver. The driver then brought a Fourth Amendment suppression motion. At the ensuing suppression hearing, the officer testified that he would have stopped the vehicle regardless of whether he saw a temporary operating permit displayed on the vehicle. The defense offered testimonial and documentary evidence that a temporary operating permit was in fact displayed. The trial court denied the suppression motion, noting that it did not find the defendant's testimony regarding the temporary operating permit credible.

Division Two of the First District Court of Appeal reversed the denial of the defendant's suppression motion. In so ruling, the Court of Appeal held that under these circumstances the officer had an obligation to at least look for a valid temporary operating permit as he followed the vehicle in question. Without doing so, the officer could not have formed a reasonable suspicion that the vehicle was not properly registered.

The Court of Appeal, however, was quick to limit the scope of its holding. It did not hold that officers who observe expired registration tabs have an affirmative duty to look for an operating permit prior to conducting a traffic stop. Thus, it appears the Court of Appeal was particularly troubled that the officer in this case would have stopped the vehicle regardless of whether he saw a temporary operating permit displayed on the vehicle. In addition, the Court of Appeal rejected the defendant's appellate contention that, as a matter of law, an officer who stops a vehicle with expired registration must check for the temporary operating permit as soon as the stop is affected, and release the vehicle as soon as he determines that a temporary operating permit is in place.

The unanimous opinion was authored by Presiding Justice J. Anthony Kline.

People v. Dean, no. A115164 (Cal.Ct.App. (1st Dist., Div. Two) filed 12/21/07)

California appellate courts have wrestled with a number of different fact patterns involving traffic stops and temporary operating permits of late. However, the question of whether an officer may stop a vehicle that has an expired registration tab but also displays a temporary operating permit remains an open one. The California Supreme Court has granted review in two somewhat similar cases though. In People v. Hernandez (S150038) and In re Raymond C. (S149728), the Supreme Court will address the following issue: "If a police officer sees that a motor vehicle lacks a rear or both license plates, may the officer make a traffic stop to determine if the vehicle has a temporary permit or if a displayed temporary permit is a valid one?"

Anonymous Tip Survives Fourth Amendment Scrutiny

The California Supreme Court held that an anonymous 911 tip contemporaneously reporting an assault with a firearm and accurately describing the perpetrator, his vehicle, and its location is sufficient to justify an investigatory detention. Despite the absence of police corroboration of the criminality alleged in the anonymous tip, the Court affirmed the denial of the motion to suppress because "the Fourth Amendment does not bar the police from taking necessary action to protect public safety in the circumstances of this case."

The majority opinion was authored by Justice Marvin Baxter. Justice Kathryn Werdegar filed a concurring opinion, in which Justice Carlos Moreno joined.

People v. Dolly, no. S134505 (Cal. Supreme Ct., filed 2/01/07)

California Supreme Court Upholds The Use Of Wiretaps

The California Supreme Court unanimously upheld the legality of the wiretaps at issue in this case, concluding that there was substantial evidence in support of the necessity of the wiretaps. Wiretaps are deemed necessary if normal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous. In reaching this result, the Court analyzed the wiretaps under federal statutory wiretap standards, which it noted constiuted the minimum standards for the admissibility of evidence procured through electronic surveillance.

Having found no statutory or constitutional violation, the Court declined to address the "novel questions" presented by the People’s petition for review—namely, whether a defendant who has procured a cell phone under a false name and for a criminal purpose can have a legitimate expectation of privacy in conversations made and received on that telephone within the meaning of the Fourth Amendment.

The unanimous decision was authored by Justice Marvin Baxter.

People v. Leon, no. S137137 (Cal. Supreme Ct., filed 1/25/07)

Traffic Stop Reversal

Today, California's Third District Court of Appeal issued a publication order in a Fourth Amendment traffic stop case decided last month. In so doing, the Court addressed a scenario recently left undecided by the California Supreme Court in People v. Saunders (2006) 38 Cal.4th 1129. Here, the defendant was driving a truck without license plates, but with a properly displayed temporary operating permit. While the temporary operating permit appeared valid on its face, the officer testified that in his experience temporary operating permits are “very often” forged. For this reason, he initiated the traffic stop. The Court of Appeal held that the officer's professed experience with temporary operating permits did not amount to reasonable suspicion. To hold otherwise, the Court reasoned, would effectively mean it is always reasonable to suspect that a temporary operating permit is invalid. Thus, the Court of Appeal reversed the trial court's denial of the defendant's suppression motion.

The unanimous decision authored by Justice Ronald B. Robie, which was originally issued in an unpublished opinion, was ordered published today.

People v. Hernandez, no. C051224 (Cal.Ct.App. (3rd Dist.) filed 12/18/06; ordered published 1/11/07)

Cert. Grant in 4th Amend Case

As reported by SCOTUSblog, yesterday the Supreme Court granted cert in a 4th amendment case regarding the use of deadly force during high speed chases:

In another case, the Court agreed to decide whether the Fourth Amendment puts limits on police officers who use deadly force in an attempt to stop a suspect fleeing at high speed in a vehicle. The Georgia case is Scott v. Harris, 05-1631 (cert. petition here). The case tests whether pursuing police engage in an unconstitutional seizure if they bump the fleeing suspect's vehicle from the rear, causing the suspect's vehicle to crash and resulting in serious injuries to him. The case grew out of a nighttime high-speed chase in Peachtree City, Ga., in 2001. A lower court ruled that the officer involved in the pursuit did not have qualified immunity to the Fourth Amendment claim.

Scott is a section 1983 case coming out of the eleventh circuit.

Caballes, Dogs and Roast Beef. Steve Kalar, of the N.D.Cal. FPD office and of the Ninth Circuit Blog, has a post today on the Supreme Court's recent decision on dog sniff searches in Illinois v. Caballes, no. 03-923. In Caballes, the Court held that reasonable suspicion is not required for a dog sniff of a car during a traffic stop, because the dog sniff reveals only contraband and there is no privacy interest in contraband. In his post, Steve has this helpful tip:

Note that there seems to be some limitations in the majority’s decision. First, the majority seized on the fact that the defense did not challenge the accuracy of the dog (a challenge which could made in future cases). Moreover, the original (traffic) stop was conceded to be lawful (although the dissenters think, highly suspicious). Finally, the dog sniff did not lengthen the traffic stop – had it done so, the search might have violated Terry.

I agree with this analysis, but have some additional thoughts about the accuracy/reliability question.

The majority noted that "respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk." This tells me that the Court would find that the dog sniff itself by an inaccurate/unreliable dog does not violate the Fourth Amendment. As Steve Kalar noted, use of an alert by an inaccurate dog cannot be use to support a further search or to get a warrant. But the opinion also put great weight on the fact that the evidence was that the dog alerted only to contraband. But what if there are accurate dogs that alert to non-contraband and do so in an accurate way? What if a dog accurately alerts in one particular way when it smells contraband and accurately alerts in a different way when it smells non-contraband, say roast beef? A sniff of a car by that dog would tell the handler whether or not there's roast beef in the car, thus revealing "legitimate private information." In the case of the accurate contraband-alerting & roast-beef-alerting dog, even the failure of the dog to give its roast-beef alert during the search would reveal private information: the absence of roast beef.

So I could imagine (as an appellate attorney I really have to use my imagination) attempting, at a suppression hearing, to first show that the dog is not at all reliable and its alert can't be used to support a probable cause finding. But if there is pretty solid evidence that the dog is reliable as to contraband, why not attempt to show that the dog is also accurate and reliable as to non-contraband and the sniff, even if it reveals contraband, nevertheless is an invasion of privacy because it reveals the presence or absence of roast beef.  Any thoughts out there?

Kozinski Mourns Loss of Anonymity. That's right. I've spend a couple more days absorbing Kincade, the recent Ninth Circuit en banc DNA profiling decision, and Judge Kozinski is worried about loss of anonymity:

Perhaps my colleagues in the plurality feel comfortable living in a world where the government can keep track of everyone’s whereabouts, or perhaps they believe it’s inevitable given the dangers of modern life. But I mourn the loss of anonymity such a regime will bring.

Slip op. at 11533. Of course he's right, but I can't help chuckling about Judge Kozinski of the Slate diary, the Underneath Their Robes Correspondence and the Dating Game (credit to UTR for this videoclip; best to right click and save target to disk and then open with Real Player) mourning his loss of anonymity.

O.K. he's not shy and in some circles he's a celebrity, but Judge Kozinski can still be anonymous when he wants to. Are his and our days of anonymity numbered? On this front, Judge Kozinski explains how our loss of privacy results, not just from the technology, but from judicial opinions that alter our expectations. Such altered expectations will be used to justify future intrusions:

Later, when further expansions of CODIS are proposed, information from the database will have been credited with solving hundreds or thousands of crimes, and we will have become inured to the idea that the government is entitled to hold large databases of DNA fingerprints. This highlights an important aspect of Fourth Amendment opinions: Not only do they reflect today’s values by giving effect to people’s reasonable expectations of privacy, they also shape future values by changing our experience and altering what we come to expect from our government.

Motion to Suppress Erroneously Denied. People v. Jordan, no. F043779 (Cal.Ct.App. (5th Dist.) Aug. 10, 2004).

(1) Anonymous tip, which is corroborated only as to suspect's appearance and location, but not as to illegal activity, is insufficient to justificy stop and frisk. As the court explained, "the factual differences between this case and Florida v. J.L. (2000) 529 U.S. 266 are insufficient to merit a different result. In that case, the United States Supreme Court unanimously held that an anonymous telephone tip about an individual with a concealed handgun did not create a reasonable suspicion justifying a stop and frisk."

(2) Applying People v. Sanders (2003) 31 Cal.4th 318, the court held that "parole search condition imposed on appellant did not validate the stop, frisk and seizure of the handgun" because the officer had no knoweldge of the search condition at the time of the search. The court agreed with its early decision, and a decision of the First District, holding that Sanders applies to non-residential searches.

Kincade Post No. 4: What's Next? Two things come to mind: SCOTUS and Prop. 69.

SCOTUS. There will, inevitably, be a cert. petition filed in Kincade. But there's another case to watch: People v. Adams, Cal.Ct.Appeal, no. H024504. The Cal. Court of Appeal, in Adams, rejected the defendant's claim that collection of his blood when he was a state prisoner for inclusion in the state’s convicted offender DNA database violated the Fourth Amendment. Significantly, and in contrast to Kincade, Adams involves a defendant prosecuted following a DNA cold hit. His DNA profile was used, not to monitor his conduct while on parole, but to investigate a long-ago committed crime. Read my original post on Adams here. By granting cert. in both Kincade and Adams, the Court might be able to decide a wide range of the Fourth Amendent questions presented by DNA profiling of felons. The cert. petition in Adams, no. 03-10635, has been distributed for the conference of September 27, 2004.

Proposition 69 (the "DNA Samples. Collection. Database. Funding. Initiative Statute.") will be on the November ballot in California. Information about the proposition can be found on the Secetary of State's ballot pamphlet page. It requires DNA samples for anyone convicted of a felony and for persons, including juveniles, merely arrested (i.e. not convicted) for certain offenses. In other words, Judge Reinhardt was not so far off with the parade of horribles he describes in his dissent in Kincade.

Kincade Post No. 3: Cal. AG Speaks Out. This morning, AG Bill Lockyer issued a statement which starts, "The Ninth Circuit Court of Appeals today ruled a federal policy of collecting DNA samples from federal parolees does not violate the 4th Amendment. In reaching its decision, the majority correctly found the traditional test of weighing an individual's expectation of privacy with the government's interest is the appropriate balancing standard to determine whether a policy or statute is constitutional." (Emphasis added.)

Of course, Mr. Lockyer is mistaken. It was only a plurality of the court that was willing to apply the traditional balancing test.

Kincade Post No. 2: Press Coverage. In a post yesterday, Howard "How Appealing" Bashman gives the quick picture of the ruling, and in a post this morning he collects news stories on Kincade.

Kincade Post No. 1: Sorting Out the Opinions. An en banc panel of the Ninth Circuit decided U.S. v. Kincade, no. 02-50380, yesterday, ruling 6-5 in favor of the government and holding that DNA testing and profiling of federal defendants on supervised release, under the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. § 14135a), does not violate the Fourth Amendment, even in the absence of individualized suspicion. The decision was somewhat fractured, and is best described as 5-1-5.

Plurality. The five-judge plurality opinion, authored by Judge 0'Scannlain and joined by Chief Judge Schroeder and Judges Silverman, Clifton, and Callahan, rejected the appellant's Fourth Amendment challenge by applying the Fourth Amendment totality-of-the-circumstances reasonableness test.

Warning! Long post continues. Click "Continue Reading" for more.

In holding the search and seizure reasonable, the plurality found the intrusion not terribly significant the defendant had a diminished expectation of privacy while on supervised release, the blood extraction was minimally invasive (and sterile!), and the defendant lacked an expectation of privacy in his identity, as revealed by the DNA profiling. In contrast, the plurality found the government interests significant: monitoring conditional releasees (linking them to crimes they commit while on supervised release), the deterrent effect of the profiling, and the closure that results from solving past crimes.

The plurality held that it could apply this Fourth Amendment reasonableness balancing test despite the absence of individualized suspicion, thereby rejecting the defense arguments that the special needs doctrine applied and that the seizure of blood and DNA profiling could not be justified as a special needs search because the profiling had an investigatory purpose which would survive the length of the supervised release term. The plurality acknowledged that recent U.S. Supreme Court special needs cases, such as Ferguson v. City of Charleston, 532 U.S. 67 (2001) and City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000), suggest that a search which has, primarily, a law enforcement purpose must be supported by individualized suspicion. But the plurality avoided the special needs framework by noting that in United States v. Knights, 534 U.S. 112 (2001) the Supreme Court validated a warrantless law enforcement search of a probationer, by applying the general totality-of-the-circumstances test, without considering the special needs doctrine. The plurality thus found itself free to apply the totality-of-the-circumstances test to the DNA Act, without consideration of the special needs cases. The problem with this analysis is that it gives short shrift to the fact that the search in Knights actually was supported by reasonable suspicion. To this, the plurality says "The Court has long understood special needs analysis to be triggered not by a complete absence of suspicion, but by a departure from the Fourth Amendment’s warrant-and-probable cause requirements." A majority of the en banc panel (Judge Gould who concurred and the five dissenters) rejected this approach, although in different ways.

Concurrence. Judge Gould (concurring opn. starts on page 11471 of slip op.) held that the search was justified under the special needs doctrine, although he did not seem to totally reject the plurality's approach:

I would affirm based on the “special needs” of monitoring convicts on supervised release and deterring their possible recidivism. Each method of analysis has support in Supreme Court doctrine and support from our sister circuits. But in my view it would be better to follow the special needs approach because with it extant precedents control.

Judge Gould concluded that the DNA ACT was justified by the special need of monitoring and deterring those on supervised release.

Judge Gould also placed an important caveat on the court's holding, stating his understanding that the decision was limited to whether the search and maintaining of the DNA profile was justified while the defendant was on supervised release, and the question of whether the profile should be destroyed when the defendant is no longer under supervision is still open:

A nice question, if and when properly presented, would be whether DNA samples, though lawfully obtained from a felon on supervised release, may properly be retained by the government after the felon has finished his or her term and has paid his or her debt to society.[Fn.] Once the special need for the DNA sample has gone, does the government have sufficient reason to retain the sample in order to overcome the felon’s privacy interest? Kincade’s case does not call upon us to answer this question. I express no view on the question of the future retention of a felon’s DNA after supervised release is terminated, nor do I understand the majority opinion to express any view on this question.

Main Dissent. Judge Reinhardt, in a strongly-worded dissent joined by Judges Pregerson, Kozinski, and Wardlaw, explained that, under the majority approach, anyone with a diminished expectation of privacy (e.g. public school students, federal job applicants, air travelers) could be subjected to similar intrusions and testing: "given the 'monumental' government interest and the 'insignificant' invasion of privacy described by the plurality, it is difficult to imagine that the balancing of interests it then performs would not justify the government’s including data regarding all Americans in the system regardless of the level of the expectation of privacy they might possess." Judge Reinhardt also found error with Judge Gould's approach: "my respected colleague who opts for the special needs standard obliterates the distinction between law enforcement and non-law enforcement purposes." The dissenters concluded that individualized suspicion is required for law enforcement searches. The dissenters also concluded that the search cannot be justified under the special needs doctrine because the purpose of the DNA Act is to solve crimes committed, not just during supervised release, but prior to the defendant being placed on supervised release and after the defendant is no longer under supervision. As to the totality-of-the-circumstances test and the plurality's reliance on Knights, Judge Reinhardt explained, "[t]he best way to make sense of Knights, in light of Griffin and the Court’s 'special needs' cases, is to recognize that in Knights the Court was free to apply the 'totality of the circumstances' test because the search was supported by individualized suspicion." (Were he to apply the totality-of-the-circumstances test, Judge Reinhardt would find the intrusion unjustified and the search unreasonable under the Fourth Amendment.)

Judge Kozinski issued a separate dissent, in part to emphasize that Judge Gould erred in putting off for another day the question of whether the search and seizure could be justified for a defendant who is not on supervised release, i.e. should the DNA evidence be destroyed when the term of supervised release ends? (Although he joined Judge Reinhardt dissent, it seems that Judge Kozinski would find the search justified under the special needs test for those defendant still on supervised release. He also seems to conclude that the DNA Act passes a totality-of-the-circucmstances test, were that test to apply.)

Finally, Judge Hawkins also wrote a separate dissent, although he admitted to plowing no new ground.

Note: while Judges Reinhardt and O'Scannlain have exchanged more bitter barbs in the past, the exchanges in this case would not be called gentle.

Gym Locker Was Not "Searched" When Officers Instructed Minor to Open His Locker and Officers Removed His Belongings and Placed Them in the Minor's Backpack; (2) Minor's Statement That He Had Knife In Background Constituted Reasonable Suspicion That Knife Was in Backpack. In re Cody S., no. E034514 (Cal.Ct.App. (4th Dist., Div. 2), July 29, 2004).

Because there was no search, there was no need for court to determine whether anonymous tip provided adequate suspicion to support search of locker.

Panel: Ramirez, Ward, McKinster (author)

Search Not Justified by Probation Search Condition Where Officers Are Unaware of the Condition; Probation-Search-Condition As-Consent Theory Also Rejected. People v. Hoeninghaus, no. H025621 (Cal.Ct.App. (6th Dist.) July 26, 2004).

Applying People v. Sanders (2003) 31 Cal.4th 318, which held that a parole search condition could not be used to validate a search where the officer had no knowledge of the condition at the time of the search, the court held that the same rule applies to probation search conditions: "since Officer Parker was unaware of defendant’s search condition before the search, the mere fact that defendant was subject to a condition cannot validate the warrantless search."

The court's opinion also contains a lengthy analysis of why the search condition cannot be construed as consent to a no-knowledge probation search. For one thing, "a warrantless search of a probationer cannot be upheld under the consent exception if police are unaware that the probationer gave advance consent to the search" and "because knowledge of a search condition provides essential protection against arbitrary searches, we believe that advance knowledge is necessarily implicit in a search condition."

Panel: Rushing (author), Premo and Elia.

Warrantless Entry Into Home of Suspect After He is Detained Outside of Home Not Justified by Protective Sweep Doctrine. People v. Celis, no. S107885 (Cal.Supreme Court, July 26, 2004).

Holdings: (1) where officers suspected defendant of concealing drugs or drug proceeds ($) in a tire he was rolling out of his house, stopping and handcuffing defendant, and making him sit on the ground outside his home for a few minutes, was only an investigative detention, not a warrantless arrest. (2) warrantless entry into the 500 sq. ft. home to do a protective sweep was not justified under Maryland v. Buie (1990) 494 U.S. 325. The facts known to the officers before they performed the protective sweep fell short of what Buie requires, that is, “articulable facts” considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbors a person posing a danger to officer safety.

Note: the court found it unnecessary to determine whether a warrantless search of a home is ever justified under the Buie protective sweep doctrine when officers were not already inside the house conducting a lawful arrest.

Author: Kennard

Concurrence: Justice Werdeger concurred, finding it unnecessary to speculate about the application of Buie: "Here police detained defendant outside his home. Accordingly, their warrantless entry into the home unsupported by probable cause violated his Fourth Amendment right to be free from unreasonable search and seizure. Our opinion need say no more."

The defendant-appellant was represented by Nicholas DePento of San Diego; Deputy A.G. Sabrina Y. Lane-Erwin represented the state.

Identity of defendant not suppressible as fruit of unlawful arrest, even in egregious situation where defendant was stopped merely because of ethnicity. U.S. v. Del Toro Gudino, no. 03-30023 (9th Cir. July 22, 2004).

Panel: Kleinfeld (author), Gould, and Tallman,

Review Granted on Knock-Notice Issues. The California Supreme Court granted the Attorney General's petition for review today in People v. Murphy, no. S125572. According to the docket, the questions are limited to:

1) Whether exigent circumstances justified officers' noncompliance with the knock-notice rule in conducting a probation search of defendant's residence, and (2) if not, whether the inevitable discovery doctrine applies to the knock-notice violation?

This is the second time up for this case. The first time, the supreme court transferred the case back to the Court of Appeal, for reconsideration in light of the U.S. Supreme Court's decision in U.S. v. Banks.

Read the court of appeal (4th Dist.; Div. 1) opinion here.

Search Not Made Legal By Probationer's Search Condition Where Officer Was Unaware of Search Condition. People v. Lazalde, no. H022775 (Cal.Ct.App. (6th Dist., July 19, 2004).

After deciding People v. Sanders (2003) 31 Cal.4th 318, the California Supreme Court transferred this case back to the Court of Appeal. The court "conclude[d] that appellant's adult probation search condition cannot be used to justify the search, and remand[ed] the matter for a hearing on the remaining issues raised by appellant's motion to suppress."

The Court rejected the state's argument the search could nevertheless be justified because "probationers, unlike parolees, consent to waive their Fourth Amendment rights in order to avoid a prison commitment."

Panel: Rushing, Premo, Elia (author)

Review Grant: Relief for Sanders Error. Last Wednesday, the Cal. Supreme Court granted the Attorney General's petition for review in People v. Moore, S125314. According to the court's weekly summary, Moore presents this question: "When the trial court hearing on a defendant’s motion to suppress evidence preceded this court’s decision in People v. Sanders (2003) 31 Cal.4th 418 and the record does not reveal whether or not the police were aware of defendant’s parole condition at the time of the search, should an appellate court simply reverse defendant’s conviction or should it remand the matter to the trial court for a new suppression hearing?"

Sharon M. Jones of Ventura represented Moore in the Court of Appeal; Deputy A.G. Bradley A. Weinreb represnted the state.

Read the unpublished court of appeal opinion here.

Officers Don't Need Reasonable Suspicion Before Knocking on Door in Daylight to Ask Questions. People v. Jenkins, no. G032626 (Cal.Ct.App. 4th Dist., Div. 3 (June 10, 2004) (partial publ.) (On appeal by prosecution, COA reversed order suppressing evidence and remanded with directions to determine whether encounter was consensual.

Insufficient Cause for Stop; No-Knowledge-Probation-Search Not Justified. People v. Hester, no. F034897 (Cal.Ct.App. 5th Dist., June 10, 2004) (partial publication). On remand from Cal. Supreme Court, majority again holds search was unlawful because officer lacked sufficient cause to stop vehicle where the stop was based on the fact that there had been a shooting earlier in the day and the officers ssawy three cars driving together at 12:30 a.m. in East Side Crips territory, identified one occupant as an East Side Crip, and there were several Black males in two of the cars. That's it. The majority also stood by it's conclusion that the search could not be justified as a probation search because the officers did not know the suspects at probation search conditions. The Cal. Supreme Court case on this issue, Sanders, is not distinguishable. It makes no difference that Sanders invovled a residential search of a parolee.

Supremes: Suspect Can Be Arrested For Refusing to Identify Himself. Hiibel v. Sixth Judicial District, no. 03-5554 (U.S., June 21, 2004)

The majority, in an opinion authored by Justice Kennedy rejected the defendant's Fourth Amendment claim, holding that the principles of Terry v. Ohio, 392 U. S. 1 (1968) justify requiring the suspect to give his name during the Terry stop and that "an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop."

The majority also held that there was no Fifth Amendment violation because Hiibel could not have reasonably expected that stating his name would be used to incriminate him.

Justice Stevens dissented, concluding that in the context of the Terry stop, the office's request for a name constituted interrogation and that the answer would have been testimonial:

A person's identity obviously bears informational and incriminating worth, "even if the [name] itself is not inculpatory." [Citation]. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution.

Justice Breyer, joined by Justices Souter and Ginsburg, also dissented, concluding that there is no reason to reject decades of dicta stating that a suspect need not answer questions during a Terry stop: "There are sound reasons rooted in Fifth Amendment considerations for adhering to this Fourth Amendment legal condition circumscribing police authority to stop an individual against his will."

You can learn about Mr. Hiibel and his case at the aptly-named PapersPlease.org

No Error in Denial of Motion to Suppress Based Upon Illegal Auto Stop and Illegal Phlebotimist Draw.People v. McHugh, no. D042148 (Cal.Ct.App. (4th Dist., Div. 1) June 7, 2004).

Holdings: (1) Member of police department of school district had authority to make an arrest anywhere in the state if he had probable cause to believe an offense was committed in his presence that presented an immediate danger to person or property. (The offense in this case was speeding). (2) Because defendant refused to consent to either breathelyzer or blood draw, the blood draw was proper. And even though a phlebotimist is not a person authorized by statute to conduct blood draws under DUI statute, the results of the search need not be suppressed.

Defendant Not Lawfully in Hotel Room Procured by Fraud Has No Expectation of Privacy; Denial of Suppression Motion Affrimed. U.S. v. Cunag, no. 03-50067 (9th Cir., June 14, 2004).

Radioactive "Buster" Search Doesn't Require Reasonable Suspicion. U.S v. Camacho, no. 02-50629 (9th Cir. May 27, 2004).

Holding: Border search of spare tire with radioactive density measuring device called a “Buster” does not require reasonable suspicion. In United States v. Flores-Montano, 124 S. Ct. 1582, 1585-87 (2004), the Court may clear that reasonable suspicion is genearlly not necessary for a border search of a vehicle. While an exception might apply for a search which is harmlful to a person, there was no evidence that the "Buster" search was harmlful.

Panel: Fisher (author) and Bybee, Circuit Judges, and James C. Mahan, District Judge.

Reasonable Suspicion Supported Detention and Pat Search. People v. Lopez, no. B166729 (Cal.Ct.App. (2d Dist., Div. 6) June 1, 2004).

Holding: Reasonable suspicion justified detention of pat search where woman told her daughter to call 911 because two men approached her in a threatening manner, one of men had spray paint and a handgun in his backpack, and the men painted graffiti. When the officers arrived they saw the graffiti and the mother pointed the men out to the officers.

No-Knowledge Probation Search Lawful Where Officer Erroneously Believed Suspect Was on Parole. People v. Hill, no. A097742 (Cal.Ct.App. (1st Dist., Div. 3) May 26, 2004).

In People v. Sanders (2003) 31 Cal.4th 318, the California Supreme Court held that a search of a parolee could not be justified after the fact by a parole search condition where the searching officer was unaware of the search condition. After deciding Sanders, the Supreme Court transferred this case back to the COA for reconsideration. On remand, the COA held that the search in this case was lawful. Before conducting the search, the searching officer was erroneously informed by dispatch that the defendant was not on parole, but not probation, when, in fact, he was on probation, not parole. The COA concluded that the defendant should not get a windfall due to the inept dispatcher and that the purposes of the exclusionary rule are not served by its application to this case:

the officer believed he was conducting a parole search when in fact defendant was on probation and had waived his Fourth Amendment privacy rights, except for freedom from arbitrary or harassing searches. Applying the same “totality of the circumstances” test employed by the Sanders court, we cannot conclude that the exclusionary rule dictates suppression of the evidence. The exclusionary rule serves “to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” (Mapp v. Ohio (1961) 367 U.S. 643, 656.) Nothing in this officer’s conduct manifests any such disregard. Moore’s actions do not present us with the danger of “legitimiz[ing] unlawful police misconduct.” (Sanders, supra, 31 Cal.4th at p. 335.) To punish the responsible officer and the inept dispatcher in these circumstances creates a windfall for the defendant who was legitimately subject to a search condition.

This strikes me as in conflict with Sanders. It's as if the court was imputing the correct information to the searching officer. But that could be done after the fact in most every case because current probation and parole status is usually available to law enforcement.

Search of Automobile Incident to Arrest Lawful Even Where Arrestee Was Contacted Outside of Automobile. Thornton v. U.S., no. 03-5165 (U.S. May 24, 2004).

Justice Rehnquist, writing for the majority (except for footnote 4), held that the search of the vehicle was justified as a search incident to arrest and the fact that the suspect was outside the vehicle when the officers contacted him failed to distinguish the case from the seminal automobile search incident to arrest case of New York v. Belton, 453 U. S. 454 (1981):

the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle. ... A custodial arrest is fluid and “[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty,” [Citations]. The stress is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle. In either case, the officer faces a highly volatile situation. It would make little sense to apply two different rules to what is, at bottom, the same situation.

The majority recognized that "It is unlikely in this case that petitioner could have reached under the driver’s seat for his gun once he was outside of his automobile," but '[t]he need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment, justifies the sort of generalization which Belton enunciated." The majority expressly rejected a rule which would limit the search of a vehicle incident to arrest to circumstances where the officer initiated contact with the suspect while he was still an occupant of the car.

Justice O'Connor concurred, but is unhappy with where Belton has gone: "Although the opinion is a logical extension of the holding of New York v. Belton, 453 U. S. 454 (1981), I write separately to express my dissatisfaction with the state of the law in this area. As Justice Scalia forcefully argues, post, p. 2-5 (opinion concurring in judgment), lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California, 395 U. S. 752 (1969). That erosion is a direct consequence of Belton’s shaky foundation."

Justice Scalia (joined by Justice Ginsburg) also concurred. But he disagreed with the Belton analysis, concluding that once he was handcuffed and in the back of the patrol car, the vehicle interior was not in the arrestee's immediate control:

When petitioner’s car was searched in this case, he was neither in, nor anywhere near, the passenger compartment of his vehicle. Rather, he was handcuffed and secured in the back of the officer’s squad car. The risk that he would nevertheless “grab a weapon or evidentiary ite[m]” from his car was remote in the extreme. The Court’s effort to apply our current doctrine to this search stretches it beyond its breaking point, and for that reason I cannot join the Court’s opinion.

Justice Scalia justified the search on the basis that there was reason to believe that evidence of the offense could be found in the vehicle:

I would therefore limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. In this case, as in Belton, petitioner was lawfully arrested for a drug offense. It was reasonable for Officer Nichols to believe that further contraband or similar evidence relevant to the crime for which he had been arrested might be found in the vehicle from which he had just alighted and which was still within his vicinity at the time of arrest. I would affirm the decision below on that ground.

Justice Stevens (joined by Justice Souter) dissented.

For more analysis, visit Fourth Amendment.com and SCOTUSBlog.

Exigent Circumstances Justifies Warrantless Entry Into Hotel Room Where Search Was Prompted by “911” Call to Police from Guest in Adjacent Room, Who Thought that She Had Heard Sounds of a Woman Being Beaten.
U.S. v. Brooks, no. 02-50539 (9th Cir. May 13, 2004).

Panel: Barry G. Silverman, Ronald M. Gould (author), and Carlos T. Bea

Search Violated Knock-Notice Requirements and Fourth Amendment.
People v. Murphy, no. D040040 (Cal.Ct.App. (4th Dist., Div. 1) May 14, 2004) (decision issued after Cal. Supreme Court granted state's petition for review and transferred case back for reconsideration in light of United States v. Banks (2003) ____U.S.____ [124 S.Ct. 521] (Banks).)

Sanders Applies to Probation Searches; Searching Officer's Knowledge Matters. People v. Bowers, no. A095890 (Cal.Ct.App. (1st Dist., Div. 3) Apr. 23, 2004).

The Cal. Supreme Court remanded this case to the court of appeal in light of People v. Sanders (2003) 31 Cal.4th 318, in which the court held that a warrantless search is not made legal by a parole search condition where the searching officer was unaware of the search condition at the time of the search. On remand in this case, the court of appeal held that the same rule applied to a probation search. In light of the reasoning of Sanders, which focused on the importance of the officer's knowledge, this should be no surprise.

One Party to Instant Message Conversation Can Consent to Warrantless Interception of Messages; Conviction for Attempt to Induce Minor to Engage in Sexual Activity Does Not Require that Victim be an Actual Minor.
Case: U.S. v. Meek, no. 03-10042 (9th Cir. , Apr. 19, 2004)
Proceeding: Direct criminal appeal following conditional guilty plea.

Holdings: (1) warrantless interception of AOL instant messages is lawful with consent of one party to the conversation; (2) probable cause supported warrant for search of AOL records where "[a]lthough the excerpted conversation did not include explicit mention of the boy’s age, there were sufficient indications to establish a fair probability that Meek believed he was soliciting sexual activity from a minor"; (3) because officers reasonably relied upon validity of California Penal Code section 288.2 the exclusionary rule would not apply even if that statute were unconstitutional; (4) house and vehicle search warrant was sufficiently specific and there was no Franks violation; (5) violation of 18 U.S.C. sec. 2422(b) (attempt to induce a minor to engage in sexual activity) does not require that victim be an actual minor (the court joined with the 5th, 6th & 11th Circuits on this point); (6) applying § 2422(b) to cases involving an undercover agent does not render the statute overbroad under the First Amendment.

Panel: J. Clifford Wallace, John T. Noonan, and M. Margaret McKeown (author)

Review Granted On Multiple Search/Seizure Issues in Brendlin and Saunders. On Wednesday, I noted that the California Supreme Court had granted review in two search and seizure cases presenting questions about whether a passenger has standing to challenge a traffic stop. People v. Brendlin, no. S123133 and People v. Saunders, no. S122744.

The Court's weekly summary shows the issues are broader:

Brendlin and Saunders include one or more of the following issues: (1) When a car is subjected to a traffic stop, is a passenger in the car “seized” or “detained” within the meaning of the Fourth Amendment, so that the passenger may challenge the validity of the traffic stop in contesting the admissibility of evidence obtained from the passenger after the stop? (2) May a car that has expired registration tags but that also has a temporary registration permit be legally stopped to investigate the validity of the temporary permit? (3) Can a parolee subject to a search condition challenge his detention as invalid if police were not aware he was on parole at the time they detained him?

Review Granted: Do Passengers Have Standing? The California Supreme Court granted review in two criminal cases today, both presenting questions in the Court of Appeal as to whether a passenger in another person's vehicle has standing to challenge a traffic stop of that vehicle.

In People v. Brendlin, no. S123133 (no. C040754), the Third Appellate District had held, in a published decision, that the passenger did have standing. The court reversed the denial of the motion to suppress, holding that there was no "reasonable suspicion that the temporary permit was not for that car."

In People v. Saunders, no. S122744 (no. H025674), the Sixth Appellate District had held, in an unpublished decision (available from Lexisone.com - free registration required) that the passenger did not have standing. The court further held that even if reasonable suspicion was lacking, the traffic stop and the pat search of the defendant were valid.

The precise questions on which the Supreme Court granted review is not clear from the order list or the dockets.

Denial of Motion to Supress Reversed; Detention Not Supported by Reasonable Suspicion. People v. Pitts, no. D041775 (Cal.Ct.App. (4th Dist., Div. 1); Filed Mar. 22, 2004 ; Publ. Apr. 13, 2004)

Boat Search Was Border Search and Lawful; GPS Testimony Not Best Evidence.
Case: U.S. v. Bennett, no. 02-50442 (9th Cir. Apr. 9, 2004).
Proceeding: Direct criminal appeal following jury trial.

Holdings: (1) Where agents have reasonable certainty that vessel came from outside of U.S. territorial waters, search constitutes a border search. The search in this case was lawful even if reasonable suspicion was required. (Under recent U.S. Supreme Court gas-tank border search case (Flores-Montano) no suspicion is required for border search of vehicle. But reasonable suspicion may be required for especially destructive or extended search.) (2) Failure to produce GPS itself (or printout or other representation) and relying on agent's testimony as to his observations of GPS readout on boat violated best-evidence rule and was prejudicial, requiring reversal of marijuana importation charge.

Panel: Raymond C. Fisher (author) and Jay S. Bybee, Circuit Judges, and James C. Mahan, District Judge (D.Nev.)

Defendant Not Arrested During Border Search
Case: U.S. v. Nava, no. 03-50364 (9th Cir., Apr. 8, 2004)
Proceeding: Direct criminal appeal

Holding: (1) Gas Tank Search Legal: Under very recent authority, suspicionless border search of gas tank is legal. U.S. v. Flores-Montano, 541 U.S. ___, ___ (March 30, 2004). (2) Border Detention Legal: "[A]n individual is not arrested but merely detained when, at the border, he is asked to exit his vehicle, briefly handcuffed while escorted to the security office, uncuffed, patted down, and required to wait while his vehicle is searched."

Denial of motion to suppress affirmed.

Penel: Barry G. Silverman (author), Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Detention Unduly Prolonged, But De Facto Arrest Supported by Probable Cause
Case: People v. Gomez, no. G031026 (Cal.Ct.App. (4th Dist., Div. 3) (filed 3/8/04; publ. 4/6/04)
Proceeding: Appeal of denial of suppression motion following guilty plea.

Holdings: (1) Detention of over an hour was unduly prolonged where officer testified he could have completed the citation procedure within 15 minutes. Nevertheless, this de facto arrest was justified by probable cause. (2) No error in admitting suppression hearing hearsay testimony of officers who "merely repeated information relayed to them by other officers during the surveillance and investigation."

Potpourri! Checks are Consent So Search Was Voluntary, Self-Authenticating, Knowledge Not Element of Structuring Offense, and More ...

Case: U.S. v. Pang, no. 03-10032 (9th Cir. Mar. 30, 2004)

Holdings: (1) district court "did not clearly err in finding Pang voluntarily consented to the entry of his premises and voluntarily made the statements to the agents"; (2) no abuse of discretion in admitting cancelled checks, despite lack of testimony from customer issuing checks to defendant, because the checks were self-authenticating and were not hearsay; (3) invoices were not self-authenticating, but there was sufficient circumstantial proof that the invoices were what they purported to be; (4) crime of unlawful structuring of currency transactions (31 U.S.C. § 5324(a)(3)) does not require proof that defendant knew structuring was illegal; instruction omitting knowledge element which was alleged in the charging document did not constitute constructive amendment of charges; (5) evidence of belated tax payments, made while awaiting prosecution, is irrelevant. ("Were the rule otherwise, tax evaders could avoid criminal prosecution simply by paying up after being caught"; (6) IRS agents did not misuse grand jury subpoena power to obtain information from defendant's accountant.

Authoring Judge: Barry G. Silverman

Border Search Removal of Automobile Gas Tank Does Not Require Reasonable Suspicion. Yesterday, in U.S. v. Flores-Monano, no. 02–1794 (U.S., Mar. 30, 2004), the Supreme Court, reversing the Ninth Circuit, held that officers do not need reasonble suspicion to remove a gas tank as part of a border search.

TalkLeft and FourthAmendment.Com have analysis.

En Banc Fifth Circuit Panel Broadens Reach of Protective Sweep Doctrine. An en banc panel of the Fifth Circuit held last week that a protective sweep may be conducted in the absence of an arrest or search warrant. This is no small thing and law enforcement officials already recognize that it broadens their powers.

The case is U.S. v. Gould, no. 02-30629.

Commentary and reports are available from TalkLeft, How Appealing, and the Houston Chronicle.

Update. Overpundit weighs in too.

Hotel Guest Who Has Not Been Evicted Has Expectation of Privacy and Illegal Entry by Police Rendered Subsequent Acquiescence to Search Non-Consensual
Case: U.S. v. Bautista, no. 02-50664 (9th Cir., Mar. 26, 2004)
Proceeding: Direct criminal appeal following conditional guilty plea

Holding: Where "rental period had not expired and he had not been evicted, [motel guest] retained a legitimate expectation of privacy in his motel room. His rights under the Fourth Amendment were violated by the warrantless search of his room without probable cause. The officer’s command that [guest's wife] open the door rendered her actions after that point acquiescence to a claim of lawful authority, rather than the product of freely given consent. No significant intervening time, space, or event provided a buffer between the off