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California Peace Officers Legal Sourcebook a SEC EES SUMMARY OF CONTENTS oie chapter Page 1, THIS SOURCEBOOK AND THE LAW Leen gaits, # aa Purpose of Sourcebook; how to use Sourcebook; definition of "the law 2. SEARCH AND SEIZURE - PERSONS... . (here, SR: Ee 2a The Fourth Amendment; the "Exclusionary Rule;" Proposition 8; "standing; " consensual encounters; detentions; arvesta, arrest warrants; searches incident fo arrest; removal of evidence from suspect's body 3. SEARCH AND SEIZURE - PREMISES er oe 3a Reasonable expectation of privacy; plain view; emergency entries and searches; knock and notice; consent searches; searches incident to arrest; abandonment 4. SEARCH AND SEIZURE - VEHICLES... . aed PENPALS, & os sional Wed Detentions; searches incident to arrest; searches based on probable cause; plain view; plain smell; consent searches; vehicle as instrumentality of crime; inventories 5. SEARCH AND SEIZURE - MISCELLANEOUS £ 4 . . 5a Border searches; agricultural border stations; roadblocks; airports searches; use of dogs; parole and probation searches; jail and prison searches; eavesdropping; business records; Searches by private persons. 6. SEARCH WARRANTS . Fe Re ce Br org Jurisdiction; definitions; grounds for issuance; probable cause; informants; staleness; describing places and property; errors and omissions; nighttime service; confidential informants; execution and return; oral affidavits; telephonic oaths and faxed affidavits; telephonic’ search warrants Rev. 7/96 California Peace Officers Legal Sourcebook SUMMARY OF CONTENTS Chapter 2 a aa 13 STATEMENTS Importance of statements; Miranda warnings (Pifth Amendment); right to counsel (Sixth Amendment) ; voluntariness of statements (Fourteenth Amendment) ; statements to private persons; statements from witnesses; anticipating defenses LINEUPS AND SHOWUPS Suggestivity; reliability; searches and seizures during showups; right to attorney; recommended procedures; suppression hearing; identifications at trial; police art. REPORT WRITING Importance of reports; documentation. nciples of clarity; CRIMINAL PROCESS Arraignment; charging; discovery; pretrial interviews; suppression hearings; plea bargains; diversion; stages of tria. appeals, federal courts EVIDENCE Kinds of evidence; presentation of evidence; admissibility of evidence TESTINONY . Pretrial preparation; appearance; demeanor; testimony. CRIMINAL LAW... Parties; elements; intent; defenses; crimes against property; crimes against persons; general criminal statutes; weapons and firearms. Rev Page 10.1 qt a2.2 43.2 7/96 California Peace Officers Legal Sourcebook Chapter 14 as 16 a7. 1 19 20. 21 SUMMARY OF CONTENTS JUVENILE LAW crv Authority for taking juveniles into temporary custody; detention of juveniles; constitutional rights; school~ related laws; crimes against children; emancipation of DISPUTES Enforcing the law and keeping the peace; private person arrests; restraining and protective orders; trespass; repossessions; landlord/tenant disputes; labor disputes; disputes with businesses. TRAFFIC LAW TABLE General Vehicle Code provisions; definitions; arrest procedures; vehicle registration; driver licensing; vehicle equipment requirements; accidents and accident reports; rules of the road; removal of vehicles from public or private property IVING UNDER THE INFLUENCE Offenses involving alcohol and drugs; implied consent law; admin per se; related Vehicle Code sections; boating under the influence; flying under the influence oF CASES SUBJECT MATTER INDEX LOCAL LOCAL ORDINANCES POLICIES AND PROCEDURES Page aaa as.1 16.1 aya ae. asa 20.1 aa Rev. 7/96 California Peace Officers Legal Sourcebook In. Iv THIS SOURCEBOOK AND THE LAW TABLE OF CONTENTS INTRODUCTION PURPOSE OF THIS SOURCEBOOK A, Education Bl Conviction | | cl Advisory Resource USE THIS SOURCEBOOK A. Chapters B. Indexes /Pagination c Citations 7 D. Revisions ‘THE LAW A constitutional Law 1. The United States Constitution 2. The California Constitution B Statutory Law cl Case Law 1. Precedent 2. Departure From Precedent 31 The Officer's Role Rev. 9/00 California Peace Officers Legal Sourcebook SN THIS SOURCEBOOK AND THE LAW aa I. INTRODUCTION ‘The increasing complexity of the law is causing officers to complain, "You ‘gotta’ be a lawyer to be a cop these days." There is a lot of truth to that statement. In fact, many times you are expected to know the law better than most lawyers! ‘The reason you have to know the law so well is obvious, namely, you must often decide in seconds what to do in a given situation. Lawyers may then take months to research and prepare to argue the propriety or impropriety of what you did. After that, the trial, appellate and supreme courts may again research and reflect for months (or even years) before they decide whether what you did was right or wrong (often by a split decision) Citizens and prosecutors sympathize with your plight. Prosecutors do not, however, sympathize with a conmon notion among officers that the law can be learned and applied by straight memorization. It cannot. For officers who would rather memorize than think, this Sourcebook will be of little help. "Hard-and-fast" rules are few and far between Adaptation to a specific situation is almost always required. The sooner you realize this, the better officer you will be. Only if you combine the principles in this Sourcebook with good faith and good judgment will your conduct have less chance of becoming a casualty Btatistic before the courts II, PURPOSE OF THIS SOURCEBOOK A. Education This Sourcebook is primarily intended to be used both as an educa- tional and training text--an explanation of how "the law" relates to the many different aspects of your job--and also a means of helping you keep up with all the major changes in criminal law. It is, as its name indicates, merely a legal reference and is not intended as a directive to set policy or guidelines for your department, B. Conviction ‘This Sourcebook has a "conviction bias." If the purpose of your investigation is to just arrest or confiscate property rather than convict, this Sourcebook is not for you. If, on the other hand, you are interested in increasing your professionalism through knowledge of the law and techniques which will result in obtaining and upholding convictions, keep reading C. Advisory Resource ‘his Sourcebook, of course, does not attempt to cover every aspect of the law which you might encounter on the job, nor can it advise Rev. 9/00 California Peace Officers Legal Sourcebook 2 2 1.2 THIS SOURCEBOOK AND THE LAW you what to do in every conceivable situation. As professionals, you will be required in the vast majority of cases to use your good judgment What this Sourcebook does give you instead is the basic legal principles and information--often with specific examples--to help you best exercise that good judgment. However, the Sourcebook is not intended to set policy or guidelines for your department, or to act as a substitute for local rules and regulations. In these matters, you should consult your department and/or legal advisor, and enter any relevant materials in the designated space at the back of the Sourcebook IIT, HOW TO USE THTS SOURCEBOOK A. Chapters ‘As you can see from the Summary of Contents, this book contains 17 substantive chapters which discuss the primary areas of the law to which an officer is exposed in his/her (hereinafter "his") job Some areas (such as search and seizure) change much more quickly than others (such as report writing or testifying), but all are important aspects of your profession ‘The law ie sometimes described as a "seamless web." This descrip- tion is particularly appropriate with reference to a police offi- cer's job and the contents of this Sourcebook. Because of the strong interrelationship of the subjects contained, this Source- book will not be as useful, and may even be misleading, if you focus on only one small part as a reference source in a particular situation. For that reason, it is absolutely crucial to your successful understanding of the law and use of this Sourcebook that you study and learn it as a whole rather than focusing on isolated chapters. B, Indexes/Paaination At the beginning of each chapter, there is a detailed table of contents for that chapter In addition, an index of case name citations (Table of Cases, ch. 18) and a Subject Matter Index (ch. 19) have been included in this Sourcebook so that you can quickly look up any case or issue. since every chapter starts with its own page-number series (i.e., 7.1, 7.2, ete.) references to a specific portion of a chapter will first show the chapter number, followed by a period and then the page number Rev. 9/00 California Peace Officers Legal Sourcebook SE SESS ESSEC THIS SOURCEBOOK AND THE LAW 1.3 Example: "See p. 7.12" means that you should look up the page of chapter 7 bearing the number "7.12" to find more or different information on the topic under discussion; and "See ch. 7” refers to the entire chapter. ations Case Names In most instances throughout this Sourcebook--both in the text and the case name index at the end--the name of only one party (usually the defendant) will be used when referring to case nanes. For example, you will see only the name Miranda, Reves, or Keithlev, even though the full case name is Mixanda v. Arizona, People v. Reyes, or People v. superior Court (Keithley) « 2. Case Reporters cases are published in books called "reports" or "reporters." Usually, a given "reporter" contains all the cases from a specific court or level of court. For instance, "U.S." means the United States Reports, containing cases from the United States Supreme Court; "Cal." means the California Reports, containing cases from the California Supreme Court; "Cal.ApD means the California Appellate Reports, containing cases from the California Courts of Appeal. Every so often, a reporter will change its format and start over with a new "series." Thus, "Cal.app." refers to the first series of the California Appellate Reports, "Cal.App.2d" refers to the second series, "Cal.App.3d" refers to the third series, and "Cal.App.ath" refers to the fourth series (which began in 1992 and is the one currently being published) . Similarly, "Cal.3d" means the third series of the California Reports (Containing state Supreme Court decisions), and "cal.4th* is referring to the fourth series, which’ is the one currently being published Example ‘The citation "Woods (1999) 21 Cal.4th 668" means that the case was decided by the California Supreme Court in 1999 and can be found in volume 21 of the California Reports, fourth series, starting at p. 568. Example ‘The citation "Allen (2000) 78 Cal-App.4th 445, 452" means that the case was decided by one of the California Courts of Appeal in 2000 and can be found in the 78th volume of the California Appellate Reports, fourth series, starting at page 445, with the particular point it is being cited for appearing at page 452. Rev. 9/00 California Peace Officers Legal Sourcebook Example: Example: Example: THIS SOURCEBOOK AND THE LAW The citation "(1990) 50 Cal.3d 1" means that the case was decided by the California Supreme Court in 1990 and can be found in the 50th volume of the California Reports, third series, at page 1. The citation "(1989) 215 Cal.App.3d 230" means that the case was decided by one of the California Courts of Appeal in 1989 and can be found in the 215th volume of the California Appellate Reports, third series, at page 230 The citation "(1982) 456 U.S. 798" means that the case was decided by the United States Supreme Court in 1982 and can be found in the 456th volume of the United states Reports, first series, at page 798 Note: Decisions by the United States Supreme Court are collected in more than one "reporter." Many of the U.S. citations you see will be to the "Supreme Court Reporter," because it is published sooner than the "United states Reports." Thus a typical citation to a recent Supreme Court case might be "(2000) 120 S.Ct 2326," which means volume 120, page 2326, of the Supreme Court Reporter. I you understand this system and have access to a law library, you should be able to locate any opinion referred to in thie Sourcebook, in the event you would like to read the entire court opinion as it was written. Revisions "the law" changes all the time, sometimes because of new legislation, but more often because of new decisions from the courts. Before thie Sourcebook came along in 1984, it was very Gifficalt for officers to have any realistic way of keeping abreast of these changes. The Sourcebook attempts to fill this void by issuing a “revision packet” every 60 days to reflect important new court decisions (case law) and new legislation. To keep your Sourcebook current, you must be sure to obtain and insert all revisions, in sequence. Rev. 9/00 California Peace Officers Legal Sourcebook 2 sa SEE ES TE THIS SOURCEBOOK AND THE LAW 1.5 IV. THE LAW “The law" comes from three primary sources - the United States and california Constitutions; statutes; and case law A. Constitutional Law 1, The United States Constitution a. The Supreme Law ‘The United States Constitution is the supreme law of the land. (U.S. Const., art. VI.) No statute or case ruling by a court can stand which is in conflict with the Constitution b. The Bill of Rights ‘The first 10 amendments to the United States Constitution (there are 26 now) were adopted in 1791, and are known as the Bill of Rights. Many of them are important to crimi- nal law (free speech, trial by jury, right to counsel, etc.), but by far the greatest impact comes from the Fourth (searches, seizures, warrants) and Fifth (self- incrimination) Amendments. This Sourcebook devotes several chapters to these two amendments and many of the cases interpreting them The California Constitution ‘The California Constitution begins with a Declaration of Rights, which reflects the same concerns as the Bill of Rights. For example, the right to freedom from unreasonable searches and seizures appears at article I, section 13, and the right against self-incrimination is contained in article I, section 15 Rev. 1/92 California Peace Officers Legal Sourcebook 1.6 THIS SOURCEBOOK AND THE LAW In the late 1970's and early 1980's, the California supreme Court based many of ite decisions on this state's Constitution. Citizens (including suspects) were given more rights under the California Constitution than they are entitled to under federal law. These "independent state grounds" caused many cases to be dropped or lost even though they could have been prosecuted under federal standards. The people of this state attempted to stop this trend when they enacted Proposition 8, in 1982, and Proposition 115, in 1990, both of which amended the California Constitution. Both, however, were only partially successful Proposition 8, as construed in Lance W. (1985) 37 cal.34 873 and May (1988) 44 Cal.3d 309, left California's "independent state grounds" intact. In other words, the additional substantive rights which Californians are accorded under thie state's Constitution still exist. However, exclusion of evidence, as a zemsdy for violation of those rights, was eliminated. As long as the evidence was obtained in compliance with the federal rules, i-e., as long as there was no violation the Fourth, Sixth or Fourteenth Amendments of United States Constitution, the evidence is still admissible in court Proposition 115 attempted to streamline the criminal justice system in many different ways. One of these was to expressly eliminate "independent state grounds" altogether by precluding California courts from interpreting this state's Constitution so as to provide any additional or greater rights than are afforded under the United States Constitution. However, this particular portion of Proposition 115 was invalidated by the California Supreme Court as an improper "revision" of this state's Constitution in Raven (1990) 52 Cal.3d 336 Accordingly, in the few and ever dwindling areas where clear differences between federal and California law still remain, your sworn duty, as always, is to uphold and follow this State's Constitution. Rev. 1/96 California Peace Officers Legal Sourcebook 1 EE TEESE] THIS SOURCEBOOK AND THE LAW 1.7 B. Statutory Law Besides the united states and California Constitutions, "the law" also comes from statutes which appear in the various "codes," such as the Penal Code, Vehicle Code, Health and Safety Code, Welfare and Institutions Code, Business and Professions Code, etc. Cali- fornia has over two dozen different "codes." Predictably, this Sourcebook deals most frequently with the Penal Code and the Vehicle Code. C. Case Law The vast majority of "the law" is case law, i.e., decisions or "opinions" cf courts which interpret the meaning of statutes and of the United States and California Constitutions. Every year, hundreds of published opinions are handed down by the federal and state appellate and supreme courts which have a direct impact on how you are to conduct your job. For instance, if an officer makes some binocular-aided observations of someone's property, the courts may ultimately decide whether, under the specific facts of that case, an "unreasonable search" took place or the suspect's right of privacy was violated 1. Precedent it is important for you to understand that a court makes its decision based on other, previous court decisions, called "precedent." Courts (especially intermediate appellate courts) try to rule consistently with past decisions in order to maintain an orderly system where people can know what conduct is permissible. 2. Departure From Precedent For various reasons, however, courts do not always follow precedent. Sometimes one appellate court will simply disagree with another; sometimes a given court will change its mind and disregard ite own earlier opinion. But most commonly, "new law" is made not by departing from precedent, but because new facts are involved. Every case seems to have something about it which is different from any situation which has gone before. It ie the application of the Constitution or statutes to these different fact situations which typically results in "new law. Rev. 7/90 California Peace Officers Legal Sourcebook. SEARCH AND SEIZURE - PERSONS 24 TABLE OF CONTENTS Page lL INTRODUCTION... Boag Bae apraee deer. 228 A. The Fourth Amendment 2. eee ee ee BaD B. ‘The Exclusicnary Rule . 2.2 1 Proposition 8 . atk st a 2.2a wstanding” =... ee + 22a Exception, 2.da c and Seizures General Considerations Go eee = gy Pee In. CONSENSUAL ENCOUNTERS cee Ey anf 2.6) A. Definition . 7 2.6 B. Contacts/Requesting Identification : 2.6 ©. Searches and Seizures During Consensual Encounter - 2.64 D. Officer Safety . . ton FOR tease o fe, eae ge Guid rl? 64. XII DETENTIONS/STOPS : tase eg 2.7 A, Definition and Purpose te cen ay F ay7s2,7. B. Reasonable Suspicion Se thee Seer Sks : 2.8 1. Specific Factors . . be ee Be1Ob a. Nighttime/High Crime Area . 2.10 b. Race eeieh se ere © + 2.10a c. Flight... ee peetasd d. Your Experience 2.12a e. Officer Safety 2.120 £. Drug Courier Profile| 2.126 Information From Others 2.124 a. Anonymous Tips 2.124 b. 9-1-1 and Cellular Phone Calis te Bedag c. Duty to Stop/Use of Force to Stop Suspect . . 2. 223 D. Investigative Actions -- Identification . te wre ue 20, E. | Force/Physical Restraints... .. +... - > 2214p F. Moving the Suspect... 1+. +. - +. 2.16 G. ‘Time Limitations . . cee + 2.18 1. Increased Suspicion | | | + 2.18 2. Decreased Suspicion oe tee BeBe 3. Field Interrogation Caras tlt eee 2eleb H. Miranda Warnings 2.19 1, Searches During Detentions (Patdows/#risks) | 2.20 J. Seizures During Detentions . . . ce ea Gas aead 1. ‘In General : ees hs « 2.21 2. Plain View, Smell or Touch 2 2222s 2.21 3. Containers Minas ge BG ps + Sekt oeae 4. Rbandonment ee See 8 2.226 K. Informing the Suspect of His Status... + 2.226 California Peace Officers Legal Sourcebook. ik Iv. vr SEARCH AND SEIZURE - PERSONS Page ARRESTS 2.23 A. Definition... 2. +. 2.23 B. Who May Arrest te ots 2.23 1. Mandatory Arrests for Violations of Protective Orders . . a. S gates . 2.2da C. Howto Arrest 7... 7. te 2.240 1. Arrest of Foreign Nationals A cM ated Faeadb D. When You May Arrest see ee ee ee ee 2, 2db E. Where You May Arrest oes 2.25 F. Arraignment/Probable Cause Determination/ Release From Custody + 2.25 1. Section 827.1 - Arrests by Warrant -- Misdemeanors 2.26 2. Section 849 - Warrantless Arrests -- Felony or Misdemeanor... . s+ one 2.260 3. Section 853.6 - Warrantless Arrests - Misdemeanors 2.26a 4. Departmental Policies 2.27 G. Probable Cause se 2.28 1. Passengers + 2.28¢ ARREST WARRANTS/SUMMONSES 2.29 Arrests in Homes/The Warrant Requirement 2.31 1. Suspect's Residence A tec 2131 2. Third Party's Residence 2.31 3. Purpose Behind Requirement 2.31 B. Exceptions to the Warrant Requirement 2.32 1. Exigent Circumstances 2.32 2. Consent eye 2.35 a. Tricks/Misrepresentation of Purpose 2.35 b. Probation/Parole Conditions .. . 2.36 ¢. Undercover Entries»... 1. + Bae 2.36 . Re-entries eee ea ete : 2.37 3. hen Probable Cause Arises After Entry : 2138 4. Possession of a Search Warrant 2.38 5. Getting Suspect to Come Outside 2.39 Forcible Entry/Knock and Notice 7 2.40 1. Belief That Suspect Is Present 2.40 2. Compliance Excused 2.41 D. Effect of Improper Arrest 2.42 SEARCHES INCIDENT TO ARREST... . 2.43 A. The Area Subject to Search - 2.43 B. The "Contemporaneous" Requirement 2.47 Rev. 5/07 California Peace Officers Legal Sourcebook SEARCH AND SEIZURE - PERSONS aiid Page vir EMERGENCY SEARCHES . 2.48 vitr CONSENT SEARCHES 2.48 IX, SEARCHES AND SEIZURES OF EVIDENCE FROM A SUSPECT'S BODY 2.49 A, Bodily Intrusion Search Warrants 2.49 1, Blood Test Warrants 2151 2. Warrants for Surgery and Internal Probing 2.51 B. Warrantless Bodily Intrusion Searches 2.52 1. Blood Samples 2.52 2. Stomach Pumping/Vomiting 2.53 3. Other warrantless Body Searches 2153 c. Use of Force... 2.55 1. Force to Obtain Blood Sample 2155 2. Removing Evidence from Suspect's Mouth 286 D. Drug Testing 2.57 Rev. 1/02 California Peace Officers Legal Sourcebook SEARCH AND SEIZURE - PERSONS 2a I. INTRODUCTION A. The Fourth Amendment Both the United states and California Constitutions prohibit "unreasonable" searches and seizures of people, houses, and personal property. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.* (Fourth Amend., U.S. Const.; Cal. Const., art. 1, § 13.) A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. (, (1984) 466 U.S. 103, 113; Lingenfelter (9th Cir. 1993) 997 F.2d 632, 637.) A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interest in that property. (Horton (1990) 496 U.S. 128; Bennett (1998) 17 Cal.4th 373, 385; Johnson (sth Cir. 1993) 990 F.2d 1128, 1132.) A "seizure" of a person occurs: (1) when a peace officer physically applies force or (2) when a person voluntarily submits to a peace officer's authority. (Hodari D. (1991) 499 U.S. 621, 626; Turner (1994) 8 Cal.ath 137, 180.) “The Fourth Amendment is not violated unless a legitimate expectation of privacy is infringed." (Clark (1993) 5 Cal.4th 950, 979; Tyrell J. (1994) 8 Cal.ath 68, 83.) Also, this infringement must be by the government or its agents; private citizens cannot violate the Fourth Amendment: "The proscription against unreasonable search and seizure in the Fourth Amendment applies only to the acts of government officers or their agents." (Skinner (1989) 489 U.S. 602, 614; Jones (1998) 17 Cal.ath 329, 333.) bastly, the search or seizure must be intentional, rather than merely an accident. Thus, for example, if an officer did not intend to collide with a motorist or pedestrian, or did not intend to shoot and wound or kill the one actually struck, there is no “seizure.” “The Fourth Amendment addresses “misuse of power,’ not the accidental effects of otherwise lawful government conduct." (Brower (1989) 489 U.S. 593, 596, 597.) Rev. 7/04 California Peace Officers Legal Sourcebook 2.2 SEARCH AND SEIZURE - PERSONS B. The Exclusionary Rule When challenged, the legality of a search or seizure is normally decided prior to trial, either as part of the preliminary hearing or at a separate pre-trial "suppression" motion, or both. (Pen. Code, § 1538.5.) The prosecution bears the burden of proving the justification for a search or seizure, and evidence must be presented via live testimony subject to cross-examination. (Johnson (2006) 36 Cal.ath 717, 723.) ‘The court must first determine whether the police acted legally, that is, whether the search or seizure was reasonable or unreasonable. (Leon (1984) 468 U.S. 897, 906.) This question will most often be decided gbiectively, that is, without regard to what the officer was personally or "subjectively" thinking. (Sullivan (2001) 532 U.S. 769, 771- 772; Whren (1996) 517 U.S. 806; Scott (1978) 436 U.S. 128, 135- 236; Hull (1995) 34 Cal.App.4th 1448, 1454; Perez (1996) 51 cal.app.dth 1168, 1178.) If the court finds that the search or seizure was unreasonable, At must then decide whether the evidence must be "suppressed," that is, "excluded" from evidence at trial. The "exclusionary rule" was created by the Supreme Court to encourage proper police conduct. (Scott (1998) 524 U.S. 357, 363.) An officer arrests a suspect for murder. In a search of the suspect incident to the arrest, the officer finds credit cards belonging to the victim. The suspect then confesses to the murder. If the court rules that the officer did not have sufficient "probable cause" for the arrest, both the credit cards and the confession will be suppressed. (See Williams (1988) 45 Cal.3d 1268 and Lozoya (1987) 189 Cal.App.34 1332 for a discussion of "taint" and "fruit of the poisonous tree.") However, in deciding whether or not to suppress the evidence, the court may look at the officer's state of mind ("good faith"), whether the purpose behind the exclusionary rule will be served, whether the evidence was obtained as a direct result or "exploitation" of the illegal police conduct, and whether the evidence would have been legally discovered anyway. (See, generally, Hull (1995) 34 Cal.app.4th 1448, 1453; Scott (1998) 524 U.S. 357, 362-363.) ‘The "exclusionary rule," therefore, will not be invoked for every violation of the Fourth Amendment, only those violations that produce illegally obtained evidence and those for which suppression will provide a deterrent to further police misconduct. (Hudson (2006) 126 $.Ct. 2159, 2167-2168.) Ne Even if evidence is not excluded in a criminal trial, a Fourth Amendment violation can result in a 42 U.S.C. § 1983 civil rights action, which the United States Supreme Court has now identified as an appropriate deterrent for intentional violations of the Fourth Amendment. (Hudson (2006) 126 8.ct. 2159, 2167-2168.) Rev. 7/06 California Peace Officers Legal Sourcebook SEARCH AND SEIZURE - PERSONS 2.28 1. Proposition 8 Prior to the passage of Proposition @ (1982), evidence was excluded if it was obtained in violation of the federal or California Constitution, which the California Supreme Court for many years had interpreted as providing greater or broader rights to its citizens than the United States Constitution afforded. Proposition 8 was an effort to stop that expansion by eliminating California's "independent state grounds" as a basis for excluding evidence. It succeeded. Because of Proposition 8, federal rules govern the admissibility of evidence. In other words, as long as the police do not violate the Fourth, Sixth, or Fourteenth Amendment of the United States Constitution when obtaining evidence, or the constitutionally-based procedures set out in Miranda v. Arizona, the evidence is admissible in court. (Lance W. (1985) 37 Cal.3d 873, 879; May (1988) 44 Cal.3d 309; Bradford (1997) 15 cal.ath 1229, 1291; Bennett (1998) 17 Cal.4th 373, 390.) For instance, the violation of a state statute, without more, does not establish a basis for suppression under the Fourth Amendment: suppression must be mandated by the federal constitution. (Mckay (2002) 27 Cal.4th 601, 605; Mateljan (2005) 129 Cal.app.4th 367; Hardacre (2004) 116 Cal.App.4th 1292, 1300; McHugh (2004) 119 Cal.app.4th 202.) Of course, to the extent that California's "independent" rights may continue to exist, you, as sworn peace officers, are obligated to uphold them, the same as you must uphold any other part of this state's Constitution or statutory law. (McKay (2002) 27 Cal.4th 601, 618.) As a practical matter, however, no case has discussed any “independent state grounds" for many years, and it pears that the differences which once existed between federal law" and "California law" have for the most part faded into history 2. Standing Ever since the passage of Proposition 8 in 1982, a defendant must demonstrate "standing" if he moves to suppress evidence (Pen. Code, § 1538.5). "Standing which is more accurately viewed as a question of “privacy"--means that a defendant wishing to suppress evidence mst show that the illegal search or seiaure invaded his own personal, reasonable, and legitimate expectation of privacy. ‘(Carter (1998) 525 U.S. 83, 88; Rakag (1978) 439 U.S. 128, 143; Badaett (1995) 10 cal.ath 330, 343, 353; MePeters (1992) 2 Cal.ath 1148, 1171; Hoag (2000) 3 Cal-App.4th 1198, 1203; Roybal (1998) 19 cal.4th 481, 507.) Rev. 7/05 California Peace Officers Legal Sourcebook 2.2b SEARCH AND SEIZURE - PERSONS nove likewise, a defendant is not entitled to claim that some other person's Miranda (Gifth) or Sixth amendment rights were violated. (Badaett (1995) 10 Cal.ath 330, 343; Barnett (1996) 17 Cal.dth 1044, 1137.) However, admission at trial of a coerced, involuntary statement from a third party may result in a fundamentally unfair trial for the defendant (a violation of Fourteenth Amendment Gue process) if the defendant can Show that the coercion rendered the evidence unreliable (See Badgett (1995) 10 Cal.4th $30, 343-345, and J-ciyde K. (1987) 192 @al‘app-3d 710, 720-7 ‘The law of "etanding" can have a eignificant impact on criminal prosecutions. For example, suppose that during a vehicle stop, you make a warrantless search and seizure of drugs from a briefcase located between the driver (defendant) and another person. As a prerequisite to making a successful pretrial suppression motion, the defendant will have to establish ownership of the briefcase, at some point during the hearing, in order to denonstrate his "standing." (Thompson (1996) 43 Cal.App.4th 1265, 1269; Thompson (1990) 221 Cal.App.3d 923; Contreras (1989) 210 Cal.App.3d 450.) In other, words, "Defendant bears the burden of showing a Legitimate expectation of privacy." (Roybal (1998) 19 cal.ath 481, 507; Rawlings (1980) 449 U.S. 98, 104.) re he denies ownership or any possessory interest--or if he denied it earlier, such as when he was arrested--he may be precluded from litigating the merits of his motion. (Stanislawski (1986) 180 Cal.App.3d 748, 757; Dasilva (1989) 207 Cal.App.3d 43, 49; Decoud (9th Cir. 2006) 456 F.3d 996, 1007-1008; Gonzales (sth Cir. 1992) 979 F.2d 7i1, 714; but see Allen (1993) 17 Cal.App.ath 1214, 1218- 1223.) And if he admits ownership, he will not be able to change his story at trial without the risk of being impeached by his earlier suppression testimony! (Beltran-Gutierrez (9th Cir. 1994) 19 F.3d 1287, 1289; Johnson (1984) 162 Cal.app.3d 1003, 1010.) Establishing "standing," however, can be tricky. Among the factors to be considered are (1) whether the defendant has a property or possessory interest in the thing seized or the place searched; (2) whether he has the right to exclude others from that place; (3) whether he has exhibited a subjective expectation that it would remain free from governmental invasion; (4) whether he took normal precautions to maintain his privacy; and (5) whether he was legitimately on the premises. (Rovbal (1998) 19 Cal.4th 481, 507.) Rev. 9/06 California Peace Officers Legal Sourcebook SEARCH AND SEIZURE - PERSONS 2.3 Thue, for example, a person who is merely present in a hotel room that is rented to another lacks standing to question the validity of the police entry (Koury (1989) 214 Cal.app.34 676; Hernandez (1988) 199 cal-App.3d 1182), including compliance with "knock and notice’ requirements (Lockett (9th Cir. 1990) 919 F.24 585). Likewise, a person who has rented a room with a stolen credit card lacks standing to contest entry by police, including compliance with knock and notice. (Satz (1998) 61 Cal.App.4th 322, 326-327; but see Bautista (9th Cir. 2004) 362 F.3d 564; Cunag (9th Cir. 2004) 386 F.34 888, 894-895--motel mist take "justifiable affirmative steps to repossess’ the room to terminate the patron's expectation of privacy.) And the same is true for a short term (2-1/2 hour) visitor to an apartment being used for conmercial purposes (packaging dope) (Carter (1998) 525 U.S. 83, 88-91) or for a mere "visitor" to a home who is there with the host's permission, even though he may have relatively full use of the premises during his visit(s). (Cowan (1994) 31 Cal.App.4th 795, 800; Nadell (9th Cir. 2001) 268 F.3d 924, 928.) Indeed, a person may even lack a reasonable expectation of privacy in his own "home" if it consists of no more than a make-shift shelter located on public property that the person is occupying without permission and in violation of the law. (Zhomas (1995) 38 Cal.Aapp. 4th 1331, 1334--box made of wooden pallets and heavy cardboard, located on a sidewalk.) On the other hand, even an owner who is absent at the time his home is searched hag a sufficient privacy interest to assert a knock/notice violation. (Hoag (2000) 83 Cal.App.4th 1198, 1201, 1206.) Likewise, an overnight guest has standing to question the entry or Search of his guestroom. (Olson (1990) 495 U.S. 91; Hamilton (1985) 168 Cal.App.34 1058; but see Ammenta (9th Ciz. 1995) 69 F.3d 30d--"Armenta's bald assertion that he was an overnight guest is not sufficient to establish that he had a legitimate expectation of privacy in the house.*) A juvenile who resides with a legal guardian may challenge the search of all areas of the home. (Rudy 8. (2004) 117 Cal.App.4th 1124, 1135.) Even a babysitter has standing in the residence during the time he or she is sitting and while the owner is away. (Moreno (1992) 2 Cal.App.4th 577, 584-586.) So does a tenant who has not formally been evicted, even though the landlord has gotten a restraining order to keep him away from the premises. (Thompson (1996) 43 Cal.App.4th 1265, 1269.) A regular visitor who had a key to the home, the right to be present when the owner was absent, authority to exclude others, and full run of the house can challenge a search or entry. (Stewart (2003) 113 Cal.App.4th 242.) When it comes to cars, the driver of a vehicle probably does have standing to attack the validity of a trunk search, whereas a passenger normally does not. (Valdez (2004) 32 Cal.4th 73, 122; Nelson (1985) 166 Cal.App.3d 1209.) In 2006, the California Supreme Court decided that a passenger cannot challenge the validity of a routine traffic stop because the traffic stop does not constitute a ‘seizure* (detention) of the passenger. (Brendlin (2006) 38 Cal.4th 1107, cert. granted, Brendlin v. California, 02-55627; Saunders (2006) 38 Cal.ath 1129, 1134.) Note: Brendlin is calendared for April 2007 Rev. 1/07 California Peace Officers Legal Sourcebook a 4 SEARCH AND SEIZURE - PERSONS A thief does not have standing to object to a seizure or search of the stolen goods. (Danielson (1992) 3 Cal.4th 691, 708; Caymen (9th Cir. 2005) 404 F.34 1196, 1200-1201--defendant lacked standing to contest search of the hard drive on a computer obtained by using a fake credit card.) For instance, if a car is stolen, neither the driver nor the passenger has standing to challenge the police conduct. (Melnyk (1992) 4 Cal.App.4th 1532; Carter (2005) 36 Cal.dth 1114, 1141; Shepherd (1994) 23 Cal.App.d4th 825--female lacked standing to contest police search of purse she had left inside unattended stolen vehicle.) On the other hand, the lessee of a rental car does have standing, even though the lease has expired and he is holding over, at least where the rental company has not tried to regain control of the vehicle. (Henderson (9th Cir. 2001) 241 F.3d 638, 647; see also Thomas (9th Cir. 2006) 447 F.3d 1191, 1199--unauthorized driver of rental car could have standing if he had authorized driver's permission to use the car.) For other cases, see Thompson (1988) 205 Cal.App.3d 1503--store clerk has no privacy in floor area behind counter: Ziegler (3th Cir. 2006) 456 F.3d 1138--employee did not have a reasonable expectation of privacy in a work computer subject to monitoring, an Internet-use firewall, anda prohibition against personal use; Workman (1989) 209 Cal-App.3d 687--co- conspirators, documents, joint ventures; Pompa (1989) 212 Cal.App.3d 1308--person outside an office lacks standing to complain based on privacy of persons inside: Thompson (1990) 221 Cal.App.3d 923--stranger standing alone in rear yard of residence lacks standing to object to police entry inte the yard; Rovbal (1998) 19 Cal.4th 481, 507--defendant had no legitimate expectation of privacy concerning drugs he had put inside a white paper bag, then wrapped with a clear plastic bag and placed in a cinder block wall in his mother's backyard; Martine (1991) 228 Cal.App.3d 1632--person who shipped suitcase 3000 miles under someone else's name lacked standing to object to a consensual search of it; Llamas (1991) 235 Cal.App.3d 441, 446--motel room occupant lacked standing to contest consent-to- search given by roommate who had been illegally detained in a vehicle at the time of the consent; McPeters (1992) 2 Cal.4th 114s, 1172——defendant had no standing to complain about seizure of his gun from relative to whom he had voluntarily given it for safekeeping: Madrid (1992) 7 Cal.App.4th 1888--defendant was not entitled to challenge the search of her residence pursuant to a warrant which was based on information gained Guring an illegal vehicle search at which she was not present and otherwise lacked standing; Gonzales (9th Cir. 1992) 979 iad 71i--defendant lacked standing to contest warrantless search of a gym bag he was sitting next to where he told the searching officer it did not belong to him; Scott (1993) 17 Cal.App.4th 405, 410--overnight guest in an apartment "had no legitimate expectation of privacy under an ottoman when he had put nothing under it and disclaimed any interest in what was under it"; Zermeno (9th Cir. 1995) 66 F.3d 1058, 1061-1062. trial court properly found no standing where defendant failed to put on evidence to establish that he paid for, used and maintained a "stash house," even though it was the government's Rev. 1/07 California Peace Officers Legal Sourcebook SEARCH AND SEIZURE - PERSONS 2.da position, as reflected in other pleadings and assertions, to prosecute him for possession on the theory that he leased and operated the premises; Sarkisian (9th Cir. 1999) 197 F.3d 966, 987--a defendant who merely possesses the authority to access a storage rental room but does not use it, without more, lacks standing te challenge the unlawful séarch of that area; compare, Ybarra (1991) 233 Cal.App.3d 1353--defendant had standing to contest search of tool box seized from friend's motel room to which defendant had key, where defendant had locked the box and placed it in the room; Fultz (9th Cir. 1998) 146 F.3d 1102--homeless guest had privacy in boxes of his belongings which were stored in a separate area of host's garage. Regardless of how this issue may come out in court, you can greatly assist prosecutors by asking questions in the field to determine the relationship between persons and relevant objects, materials, and locations. _( (1989) 207 Cal.App.34 43; Root (1985) 172 Cal.App.3a 774.) 3, Mood Faith" Exception Historically, if a search or seizure was illegal, the evidence got excluded, period, and it made no difference that the officer may have been acting in "good faith, for example, that he had a warrant or was otherwise trying to follow the rules and did not intentionally violate the law. In 1984, however, the United States Supreme Court created a "good faith" exception to the exclusionary rule (Leon (1984) 468 U.S. 897) which, because of Proposition 8, California courts also follow. (Camarella (1991) 54 Cal.3d 592, 596.) To date, however, this exception has only rarely been applied to warrantless situations where you have made the "mistake," probably because, as the Ninth Circuit has observed, ‘there is no good faith exception for police who do not act in accordance with governing law." (Dwilley (9th Cir. 2000) 222 F.3d 1092, 1096.) Instead, the exception has been limited almost exclusively to situations where the mistake was made by someone other than a police officer and mostly in situations involving a warrant. ‘Thus, for example, the exception applies (i.e., the evidence is admissible) in situations where a judge has issued a flawed search warrant (Leon, above; sheppard (1984) 468 U.S. 981, 990-991) or where a clerk has failed to notify police that an arrest warrant has been recalled (Evans (1995) 514 U.S. 1). (See also Fleming (1994) 22 Cal.App.4th 1566, 1573; Barbarick (1985) 168 cal.App.3d 731, 739; Zortune (1988) 197 Cal.App.3d 941; Rev. 1/07 California Peace Officers Legal Sourcebook 2.4b SEARCH AND SEIZURE - PERSONS Downing (1995) 33 Cal.App.dth 1641--computer information erroneously entered by court personnel showed that suspect was still on searchable probation; and Arron C. (1997) 59 Cal.App.4th 1365--no suppression of evidence was required where police illegally searched a minor's residence based on erroneous information fron a supervising juvenile probation officer, since the P.O. did not initiate, encourage, or participate in the search and therefore could not be considered as an "adjunct to the law enforcement team*; but see Ferguson (2003) 109 Cal.app.4th 367--probation department's clerical staff who erroneous failed to remove defendant from the active on status data base were adiuncts to law in situ ons where you have made the mistake, as stated, the "good faith" exception normally will not apply the evidence will be excluded) . Example: Officer's arrest of minor at $:45 a.m. was illegal where officer thought curfew ordinance covered hours of 10 p.m. to 6 a.m., but actual hours were 10 p.m. to $ a.m. J. (1987) 193 cal.app.3a 781, 787.) Example: Tt was not a reasonable mistake of law for an officer to apply the “open container" law (Veh Code, § 23223) to an individual sitting in a car which was parked in the parking lot of a public park. (Lopez (1987) 197 Cal.App.3d 93, 101.) Rey. 1/07 California Peace Officers Legal Sourcebook Example: SEARCH AND SEIZURE - PERSONS 2.5 ‘The court ruled that it was a violation of the "open container" law (Veh. Code, § 23228) for a driver to keep an open bottle of beer in the raised area behind the Griver's seat of a Corvette. The court went on to say, however, that even if the statute permitted a container to be kept in that area, so that the officer had no right to confiscate it, suppression would not be required because the officer's mistake would have been “objectively reasonable." (Souza (1993) 15 Cal-App.4th 1646, 1653.) Finally, be aware that the "good faith" exception has no applicability to Fifth Amendment (Miranda) situations (smith (1995) 31 Cal.app.4th 1185) or to situations where the mistake ox "improper act" was by a private person, as opposed to a member of the government (Jeremy G. (1998) 65 Cal.App.4th 553, 5956--officer could rely on erroneous statement by minor that he was on searchable probation) . See discussion in Chapter 2, Section ITI-B-2, "Information From Others." Warrantless Searches and Seizures - nisiderations chapters 2, 3 and 4 of this Sourcebook discuss warrantless searches and seizures of persons, premises and vehicles. However, you should always remember that under our Constitution and system of law, warrantless searches and seizures are pre- sumptively illegal. They will be upheld only if the prosecutor can prove that the police conduct came within one of the few "carefully circumscribed and jealously guarded" exceptions to the warrant requirements. (Katz (1967) 389 U.S. 347, 357; Acevedo (1991) 500 U.S. 565.) Examples of these exceptions would include (1) consent searches, (2) emezgency searches (i.e., warrantless searches permitted because of "exigent circumstances"), and (3) searches conducted incident to an arrest. Since each of the "search and seizure" chapters focuses on different exceptions, you should read all of them to gain a better understanding of this general ‘This particular chapter discusses "consensual encounters,” "detentions," "arrests" and other problems relating to warrantless searches and seizures of persons Rev. 7/04 California Peace Officers Legal Sourcebook 2.6 SEARCH AND SEIZURE - PERSONS ar. CONSENSUAL ENCOUNTERS When you deal with a member of the public, the law will classify it as either a "consensual encounter," a "detention," or an "arrest." A "consensual encounter" is the least intrusive of these. (Rover (1983) 460 U.S. 491, 497-498, 506; Hughes (2002) 27 Cal.4th 287, 327- 328; Manuel G. (1997) 16 Cal ath 605, 821; Terrell (1999) 69 Cal.app.4th 1246, 1253.) A. Definition A "consensual encounter" is a contact between an officer and an individual which is strictly voluntary. The key element is that the person remains totally free to leave or not cooperate. (Mendenhall (1980) 446 U.S. 544, 554; Bennett (1998) 68 Cal.App.4th 396, 402; Rodriquez’ (1993) 21 Cal.App.4th 232, 238.) You must not restrain the person or exert any authority over him. (Malone (9th Cir. 1989) 886 F.2d 1162; Castaneda (1995) 35 cal.app.ath 1222, 1227; Lopez (1989) 212 Cal-App.3d 289; Ross (1990) 217 Cal.app.3d 878, 884; Christopher B. (1990) 219 Cal.App.3d 455.) Conversely, you do not need any objective reason or justification for initiating this type of contact Hughes (2002) 27 Cal.4th 287, 327; Manuel G. (1997) 16 Cal.4th 805, 822.) B. Contacts/Requesting Identification Merely approaching someone is not a "detention." (Bostick (2991) 501 U.S. 429, 434; Rover (1983) 460 U.S. 491, 497; Mendenhall (1980) 446 U.S. 544, $53; Hughes (2002) 27 Cal.ath 287, 328; Manuel G. (1997) 16 Cal.ath 805, 821; Wilson (1983) 34 Cal.3d 777, 789; Daugherty (1996) 50 Cal.App.4th 275, 283.) "No Fourth Amendment privacy interests are invaded when an officer seeks a consensual interview with a suspect." (Coddington (2000) 23 Cal.4th 529, 581.) Questions regarding identity and a request for identification are allowed during a consensual contact. (Hiibel (2004) 124 S.Ct. 2451, 2453 [*a police officer is free to ask a person for identification without implicating the Fourth amendment} ; Delaado (1964) 466 U.S. 210, 216 [interrogation relating to one's identity or a request’ for identification by the police does not, by itself, constitute a Fourth Amendment seizure"]); Gagtaneda (1995) 35 Cal.App.4th 1222, 1227; Clark (1989) 212 Cal.App.34 1233; Gonzales (1985) 164 Cal.App.3d 1194, 1196- 1197.) Shining a spotlight on someone and asking him to remove his hands from his pockets does not convert a consensual encounter into a seizure, i.e., into a detention. (Franklin (1987) 192 Cal.App.3d 935, 940-941; but see Frank v. (1991) 233 Cal.app.3d 1232, 1239.) Neither does merely asking if the person will step to the side and talk to you. (Bennett (1998) 62 Cal.App.4th 396, 402; Rodriquez (1984) 469 U.S. 1, 5-6; Derello (1988) 211 Cal.App.3d 414, 426-427.) In other words, a police officer may approach an individual in a public place, identify himself as a law enforcement officer, and, in a non-cCoercive manner, ask the individual a few questions, without reasonable suspicion Rev. 7/04 California Peace Officers Legal Sourcebook. Example: Example Bxample SEARCH AND SEIZURE - PERSONS 2.68 (Gonzales (1989) 216 Cal.App.3d 1185, 1189; Castaneda (1995) 35 Cal.App.4th 1222, 1227; Terrell (1999) 69 Cal.Aapp.4th 1246, 1253-1284; Rose (1990) 217 Cal.App.3d 879, 884; Gonzales (9th Cir, 1992) 979 F.2d 711, 713.) "AS long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer." (Terrell (1999) 69 Cal.App.4th 1246, 1253; Manuel G. (1997) 16 Cal.ath 805, 821.) An officer, patrolling a parking lot for narcotics traffickers, saw Lopez sitting on the hood of a car. The officer asked him if it was his car, and Lopez said "No." The officer asked Lopez why he was sitting there, and Lopez said he was waiting for his friends to play pool The officer asked where his pool stick was, and Lopez did not reply. The officer asked if Lopez had any identification. Lopez reached into his pocket, took out his wallet, and handed it to the officer, who opened it, causing a bindle of cocaine to fall out. Because the questioning was not accusatory and there was no show of force, the court found no detention. (Lopez (1983) 212 Cal-app.34 289, 293.) officer approached a man near a dumpster in an alley known for dope-dealing, asked if they could talk, then proceeded to obtain general information (name, DOB, prior arrest history), started filling out a field identification Card, and even ran a records check, making small talk until the results came back--an arrest warrant was outstanding. A search incident to the suspect's arrest produced heroin. HELD (2 to 1): Tt was only a consensual encounter, not a detention (which would have been illegal for lack of reasonable suspicion), up to the point of formal arrest, because up to that point Bouser was free to terminate the encounter. The officer did not order Bouser to do anything or to turn anything over to him to hold while the check was being completed, nor did the officer draw his weapon, make any threatening gestures, or utilize his car's lights or sirens. (Bouser (1994) 26 Cal.app.4th 1280, 1267-1288.) After observing somewhat suspicious conduct by a would-be passenger at an airport, the undercover officer asked the suspect if she'd mind answering some questions. Suspect said she did not want to miss her flight (leaving shortly), so they walked along together. The officer gained some information which eventually led to the discovery of narcotics at the destination airport. The court found no detention, only a consensual encounter (Denman (1980) 112 Cal.app.3d 1003, 1009; see also Danny E. (1961) 121 Cal.App.3d 44; Davis (1981) 29 Cal.36 814; Profit (1986) 183 Cal App.3d 649.) Rev. 11/03 California Peace Officers Legal Sourcebook 2.6b SEARCH AND SEIZURE - PERSONS It was only a consensual encounter, not a detention, where the officer asked "Can I talk to you for a moment?" and the individual answered "yes" and then agreed to wait in the back of @ police car while the officer ran a warrante check, and where everything was done in a polite conversational tone with no physical or verbal force. (Bennett (1998) 68 Cal.App.ath 396, 402.) Example: Activating your emergency lights (red and blue) as you pull up by a parked car constitutes a detention (assuming the person does not flee). (Bailey (1985) 176 Cal.App.3d 402.) So does pulling up by a parked car in a manner so as to block its only departure route. (Wilkins (1986) 186 Cal.app.34 804.) However, if you pull up by a parked car and leave it room to drive avay, there is no detention, even if you direct your highbeams and white spotlight into the passenger compartment. (Perez (1989) 211 Cal.app.34 1452, 1496.) ‘The exact words you use, and even your tone of voice, are extremely important to a court that is trying to decide if the contact was voluntary or not. (Ross (1990) 217 Cal.App.3d 879, 984-885; Prank (2991) 233 Cal.App.3d 1232, 1239--manner and mode of questioning can be critical.) Obviously, if you want to work in the consensual encounter mode, you must avoid sending any message that compliance with your requests is mandatory or required. (Bostick (1991) 501 U.S. 429, 437; Manuel G (2997) 16 Cal.4th 805, 821; Terrell (1999) 69 Cal.app.4th 1246, 1254; Gonzales (9th Cir. 1992) 979 F.2d 711, 713.) Therefore, it’s always a good idea to ask for the person's cooperation, rather than to demand it. And it’s an even better idea, at least in theory, to actually tell the person that s/he is free to leave and/or not cooperate. (Profit (1986) 183 Cal-App.3d 849, 865; ayarza (9th Cir. 1989) 874 F.2d 647, 650.) Example: officer stopped a woman at an airport, told her that he was investigating drug-trafficking and that he only talked to possible suspects. However, he also told her she was not under arrest, did not have to talk to him, and was free to leave HELD: ‘This was a consensual encounter, not a detention (Daugherty (1996) 50 Cal.App.4th 275, 284-285.) on the other hand, if you start exerting or asserting authority over the person--for example, by giving orders, demanding answers, displaying a weapon, using a harsh tone, telling him to stop doing x ox to move to some Other location, etc.)--the contact will be viewed as a detention, and it will be illegal unless supported by "reasonable suspicion." (Manuel G. (1997) 16 Cal.ath 805, 921; Terrell (1999) 69 Cal.App.4th 1246, 1254; Miles (1987) 196 Cal.App.3d 612, 616-617.) Rev. 21/03 California Peace Officers Legal Sourcebook Example: Example: Exampl SEARCH AND SEIZURE - PERSONS 2.60 Lastly, the officer's uncommunicated state of mind, and the individual citizen's subjective belief, are irrelevant in determining whether a "detention" has occurred. (Manuel G, (1997) 16 Cal.4th 805, 821; Terrell (1999) 69 Cal.app.4th 1246, 1254; Christopher B. (1990) 219 Cal-App.34 455, 450. Officers observed the defendant walking through a shopping center at 1:20 a.m. when all the stores were closed. They shined a spotlight on him and got out of their car, and one of the officers said, "Come over here. 1 want to talk to you." HELD: There was a detention because of this "command" and the other circumstances that would make the suspect believe he was not free to leave. Furthermore, the detention was unjustified Without some indication of criminal activity, just walking through a closed shopping center in the early morning hours does not constitute reasonable suspicion. (Roth (1990) 219 cal.App.3d 211, 215.) An officer saw some U.S. currency change hands in a group of three men standing near a corner in a high narcotics neighborhood. Desiring to make a field contact, he pulled his patrol car across the street and parked diagonally against the traffic about ten feet behind the group. When Jones started to walk away, the officer asked him to stop, which he did. When Jones started to reach for his pocket, the officer intervened and discovered narcotics. HELD: The way the officer suddenly drove up, left his car parked, and hailed the defendant, made it a "detention." "The mere fact that [the defendant] received money from another person on the street in an area known for drug activity is insufficient justification for a detention." Accordingly, the contraband was suppressed. (Jones (1991) 228 cal.app.3d 519.) It was a consensual encounter, and not a detention, where two officers contacted two males sitting on a bench in’a park, asked for and checked the identification of the one who appeared to be under the influence of a controlled substance, and did nothing by words or conduct to indicate that he was not free to leave. (Terrell (1999) 69 cal.App.ath 1246, 1254.) ‘Knock and Talk.” The same considerations between expressing or implying that the person's cooperation is required versus a truly voluntary situation are also critical when it comes to a "knock and talk." A true "knock and talk"--that is, a situation where you knock politely on the door at a reasonable hour, or at least when it appears that someone is awake and about inside, without any type of badgering or compulsion--does not require any reasonable suspicion (Jenking (2004) 119 Cal.App.4th 386; Colt (2004) 118 Cal.App.ath 1404--okay for officers to stand to the side of the door to conceal themselves.) However, persistent loud knocking, a demand to open the door, or any other coercive circumstance can easily turn a “knock and talk" consensual encounter into a detention, or even into a search, requiring a warrant or probable cause. (Cormier (Sth Cir. 2000) 220 F.ad 1103, 1108-1109; Bailey (9th Cir. 2001) 263 F.3d 1022, 1028- 1030.) Rev. 11/04 California Peace Officers Legal Sourcebook 2.64 Example: SEARCH AND SEIZURE - PERSONS Searches and Seizures During Consensual Encounters You have no authority to conduct any kind of a search during a consensual encounter unless, of course, the person gives you voluntary consent Note It is always permissible to ask for consent to search. "Mere questioning is neither a search nor a seigure.'" (Bell (1996) 43 Cal App. 4th 754, 767.) In other words, most any non-consensual search is going to require search for weapons (a patdown or frisk)--which will turn the consensual encounter into a detention (Frank V. (1991) 233 Cal.App.3d 1232, 1240, fn. 3)--is not legal unless you have specific facts or information making it reasonable for you to suspect that the person may be armed or dangerous. (Terry (1968) 392 U.S. 1; see sec, ITI-I, "Searches During Detentions,” below.) on che other hand, if you see contraband in plain view, you have the right to seize it, and it provides probable cauge to arrest the person. (Sanchez (1967) 195 Cal.App.3d 42, 48; Bates (1972) 23 Cal.app.3d 495, 439; Holt (1989) 212 Cal.App.3d 1200.) And, of course, once you have probable cause to make a custodial arrest, it justifies a fall search of the person incident to the arrest. (Valdez (1987) 196 Cal.App.34 799, 805.) Officer safety You may alwaya do whatever is reasonable to protect yourself, even during a consensual encounter. Indeed, even ordering a person (as opposed to requesting him) to keep his hands in sight or to remove them from his pockets will not necessarily convert a consensual encounter into a detention, although it may. (Exank Y. (1991) 233 Cal.App.3d 1232, 1239.) An officer approached a man on a street who he thought, based on an anonymous telephone tip, might be dealing drugs. As the officer identified himself, the man reached into his pants pocket where the officer had noticed a 1-1/2-inch bulge. Fearing that the man was reaching for a weapon, the officer grabbed the man's wrist and pulled his hand out of the pocket, causing him to drop a package of heroin. The court upheld the officer's actions because either (1) they were necessary to ensure his safety or (2) the man's movement provided a basis, as of that moment, to detain him and check for Weapons. (Rosales (1989) 211 Cal.App.3d 325, 330-331; see also Leg (2987) 194 Cal.App.3d 975, 983.) Rev. 11/08 California Peace Officers Legal Sourcebook SEARCH AND SEIZURE - PERSONS 2.7 an officer saw a group of five or six people standing in front of an apartment complex and recognized two of them as residents. As the officer approached them, they all walked away except Ross. The officer asked Ross to come over and talk to him and to identify herself, which she did. He asked her for confirming identification and also asked her, for his own safety, to remove her hands from her pockets, which she did, discarding some cocaine in the process. Because everything was done by request, the court found only a consensual encounter, not a detention. (Boss (1990) 217 Cal.App.3d 879, 684-885.) Example: Officer could order mot © passenger to remove his hands from a bulky jacket without necessarily changing the consensual encounter into a detention. (Prank V. (1991) 233 Cal.App.3d 1232, 1239.) xn DETENTIONS/STOPS A. Definition and Purpose A temporary "detention" or "stop" is an exertion of authority that is something less than a full-blown arrest but more substantial than a simple "contact" or "consensual encounter." (Avarza (9th Cir. 1999) 874 F.2d 647; Brueckner (1990) 223 cal App.3d 1500, 1505.) A "detention" occurs whenever a reasonable--and innocent-- person would believe he is not free to leave or otherwise disregard the police and go about his business. ( 4 (1991) 499 U.S. 621, 627-628; Bostick (1991) 501 U.S. 429, 434; Souza (1994) 9 Cal.4th 224, 229; Daugherty (1996) 50 Cal.App.4th 275, 283; Kemonte H. (1990) 223 Cal.App.34 1507, 1511; Rodriguez’ (1993) 21 Cal.App.4th 232, 238; Capps (1989) 215 Cal.App.3d 1112, 1120; Ross (1990) 217 Cal.app.3d 879, a4.) Such a belief may result from physical restraint, unequivocal verbal commands, or words or conduct by you that clearly relate to the investigation of specific criminal acts. (Brueckner (1990) 223 Cal.App.3d 1500, 1505.) For instance, patting someone down constitutes a detention. (Zrank V. (1991) 233 Cal.App.3d 1232, 1240.) Im addition, before a "detention" exists in the law, it is also necessary that the person actually submits to your assertion of authority. If the person runs away, for example, there has been no detention, and none occurs until and unless you actually effect a stop. (Hodari D. (1991) 499 U.S. 621, 626; Brower (1989) 489 U.S. 593, 597; Green (1994) 25 Cal.App.ath 1107, 1110; Eoranyie (1998) 64 Cal.App.dth 186, 188.) In other words, ‘a person is not ‘seized’ within the meaning of the Fourth Amendment unless he or she is somehow physically restrained or voluntarily submits to a peace officer's authority." (Arangure (1991) 230 Cal-app.3d 1302, 1307; Hodari DB. (1991) 499 U.S. 621, 626; Turner (1994) 8 Cal.ath 137, 180.) Rev. 9/06 California Peace Officers Legal Sourcebook 2.8 SEARCH AND SEIZURE - PERSONS ‘The purpose of a detention is to resolve whether or not suspicious behavior is "innocent" or relates to crime Therefore, "(t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal activ: (Zony C. (1978) 22 Cal.3d 988, 894; Tiong (9th Cir. 2000) 224 F.3d 1136, 1140; Kodani (1999) 75 Cal.App.dth 471, 476-477; Justin B. (1999) 69 Gal.app.ith 879, 886; Foranvic (1998) 64 Cal.App.dth 186, 190.) Detention law "accepts the risk that officers may stop innocent people." (Wardlow (2000) 528 U.S. 119, 126.) Tf during a detention "the officer does not learn facts rieing to the level of probable cause, the individual must be allowed to go on his way." (Wardlow (2000) $28 U.S. 119, 126.) B. eas cion For an investigative stop or detention to be valid, you must have "yeasonabie suspicion" that: (1) criminal activity may be afoot and (2) the person you are about to detain is connected with that possible criminal activity. (Nardlow (2000) 528 U.S. 119; Ornelas (1995) 517 U.S. 690, 695-696; Sokolow (1989) 490 U.S. 1, 7-8; Bennett (1998) 17 Cal.dth 373, 386.) To establish "reasonable suspicion," both the quality and quantity of the information you need is considerably less than the "probable cause" you need to arrest or search. (White (1990) 496 U.S. 325, 330; Bennett (1996) 17 Cal.ath 373, 387; Johnson (1991) 231 Gal.App.3d 1, 11.) "' [Rleasonable Suspicion’ is a leas demanding Standard than probable cause and requires a showing considerably less than preponderance of the evidence. . . ." (dardlow (2000) 528 U.S. 119, 123; Arvizu (2002) 534 U.S. 266, 274.) "Reasonable suspicion" is evaluated based on objective facts Your subjective thinking, i.e., the purpose behind your search or seizure (detention or arrest), should have no bearing on a court's determination of the legality of your action. Your "subjective intentione’ are irrelevant in determining whether a detention or an arrest was justified. (See Sullivan (2001) 532 U.S. 769, 772; Whren (1996) 527 U.S. 806, 813; see also Robinette (1996) 519 U.S. 33, 38; Scott (1978) 436 U.S. 128, 138; Hull (1995) 34 Cal.App.dth 1448, 1454; Llovd (1992) 4 cal.app.-4th 724, 733.) For example, even if you rely on the wrong statute in detaining @ suspect, your actions are not unlawful if the suspect's Actions were prohibited under a different statute. (McDonald (2006) 137 Cal.App.4th $21, 530; Justin K. (2002) 96 Cal.App.ath 695, 700 [detention based on the wrong statute is not unlawful if there is a "right" statute that applies to suspect's conduct] .) Rev. 9/06 California Peace Officers Legal Sourcebook Example Example: Example SEARCH AND SEIZURE - PERSONS 2.9 Officer detained defendant for "littering" after observing him urinate in the empty parking lot of a Berkeley restaurant at 11:23 in the morning. Although defendant's conduct did not fall within the definition littering under Penal Code section 374.4, subd. (b), he did create a public nuisance in violation of section 370. Because defendant committed a violation of state law, the fact that the officer's subjective intention was to investigate a different statute was irrelevant (McDonald (2006) 137 Cal-app.ath 521, 528.) A detention can never be based solely on a hunch, rumor, intuition, instinct, or curiosity. (Wardlow (2000) 528 U.S 119, 123-24; Tony C. (1978) 21 Cal.3d 888; Ravbourn (1990) 218 cal app.3d 308.) Rather, you must have specific facts justifying your suspicion and you must be able to articulate these to a court. The court will then decide if these facts-- based on the "totality of circumstances" including your training and experience--were enough to make your suspicion gbiectively reasonable. (Wright (1988) 206 Cal.App.34 1107; Elovd (1982) 4 Cal.App.4th 724, 733.) officers saw two men walk away from each other in an alley in an area with a lot of drug trafficking. They believed the men would have met each other if the police hadn't been there. This "looked suspicious" to the officers, so they stopped one of the men and asked for identification. When he refused, they arrested him. The court held that the fact that the men were in a neighborhood frequented by drug users was not enough for reasonable suspicion. Therefore the detention was bad (Brom (1979) 443 U.S. 47; see also Jones (1991) 228 cal.App.34 519; but see Limon (1993) 17 Cal.App.4th 524, 531-534.) ‘Two city police detectives were assigned to the gang unit, which maintained a photographic file of known gang members and associates. One day they saw five males on known gang "turf," wearing gang clothing, standing together in front of an apartment where gang members often gathered, talking and socializing. The officers detained them (by ordering them to "stay there), patted them down, ordered them to sit, interviewed each one individually, and photographed them. The entire process took 15 to 20 minutes, HELD: Although the department's policy of stopping, interviewing, and photographing possible gang members for future use was "laudable," it was illegal. Public concern and outrage over crime and violence caused by gangs is not a sufficient reason to justify a detention without a specific basis for believing the individual is involved in criminal activity. (Rodriguez (1993) 21 Cal.App.ath 232, 238- 240. Rev, 9/06 California Peace Officers Legal Sourcebook 2.10 Example Example Example Example SEARCH AND SEIZURE - PERSONS Note It has been reported that in some counties concerned officers have sccasionally been seizing clothing or other property that belongs to a gang- banger simply to prove membership in the gang. However, without valid consent, a warrant, or exigent circumstances, such seizures are illegal. Without one of these three justifications, you may lawfully seize only actual contraband, or fruits or instrumentalities of a crime, and even then only if the item is in plain view froma place you have a right to be and in a place to which you have lawful A college student reported that unknown "Mexican gang members" had telephoned threats that they would go to his on-campus apartment at 6:00 the next morning. Four mornings later, based on a "gut feeling," an officer who had reviewed the report stopped a car after observing two young Hispanic males look everal times at the student's apartment building and drive cautiously for the three miles the officer followed them. ‘The articulable facts fell short of reasonable suspicion. (Durazo (2004) 124 Cal.App.4th 728.) Officers saw two males loading a TV set into the trunk of their car at 7:30 p.m. when most nearby businesses were closed. There were no television shops nearby, and the neighborhood had been plagued by burglaries. When they saw the officers, the men looked "shocked," slammed down the trunk lid, and walked swiftly toward a bar. They ignored the officers’ requests to talk and had to be forcibly detained. The court ruled there were enough specific facts to make the detention valid. (Garcia (1981) 121 CalApp.3d 239.) An officer who was validly inside a motel room and saw what he thought might be an illegal drug in a syringe, together with a known "cutting" agent, had a basis to detain the occupants (Weight (1988) 206 Cal.app.34 1107.) officers received an anonymous tip that there was narcotics activity at a certain residence. They drove there and, from an adjacent alley, spotted a Hispanic male standing in the rear yard at 7:30 p.m. One officer recognized the man from a prior arrest and knew he lived four blocks away. Upon seeing the officers, the man stepped back, away from them. These circumstances justified hopping over the low chain-link fence to investigate the man’s presence. (Thompson (1990) 222 Cal .App.34 923.) Rev. 9/06 California Peace Officers Legal Sourcebook Example Example Bxample Example: SEARCH AND SEIZURE - PERSONS 2.10a Officers observed the defendant standing in front of a dance hall and liquor store, showing something in a partially rolled- down paper bag to a group of others gathered around him. As the officers approached in a marked car, someone yelled wRollers!" and the group dispersed. When the officers drove by again a few minutes later, the defendant was outside again, but ran back into the dance hall. They chased him and ordered him to stop. The court held that these circumstances--given this day and age where traffic in illegal drugs is endemic to our society--provided a valid basis to detain. (Brown (1990) 216 Cal-App.34 1442.) Detention of a male as a suspected truant was legal where he had a youthful appearance, was carrying a backpack, and was walking several miles from the nearest high school during school hours. (Humberto 0. (2000) 80 Cal.App.4th 237, 242; see also James D. (1987) 43 Cal.3d 903, 917.) Note In Humberto 0., the court went on to hold that it was proper for the police, who were going to return the minor to his school, to conduct a full search of him and the property under his control (i.e, the backpack) incident to his custodial “arrest.* It was valid for DEA agents to detain an individual at the Seattle airport since (1) he was a young, black male wearing a blue jacket, the favorite color of one los Angeles gang; (2) he was arriving from Los Angeles, a city known to supply cocaine to Seattle; (3) he traveled oh an airline favored by gang members transporting drugs; (4) he continually glanced around the terminal quickly and furtively; (5) he carried only a plastic shoe bag for a three-day stay; (6) he gave one agent a “hard look” and turned completely around on the escalator to look at persons behind him; (7) he passed through baggage claim without claiming luggage; (8) he had no identification and could not name anyone in Seattle to verify his identity; and (9) he could not explain his presence in the city. (alone (9th Cir. 1989) 886 F.2d 1162; see also Daugherty (1996) 50 Cal-App.4th 275, 286-287.) It was proper for an officer to detain (and pat down) a male walking along the street at 3:00 a.m. carrying what appeared to be a metal pry bar or billy club and wearing bulky clothing, and the officer knew him from numerous prior police contacts and drug arrests. (Methey (1991) 227 Cal.app.3d 349, 358.) Rev. 9/06 California Peace Officers Legal Sourcebook 2.10b SEARCH AND SEIZURE - PERSONS Example: It was reasonable to detain a man with an axe who was viding a bicycle at 3:00 a.m., even though no "axe crime" had been reported, “Some activity is so unusual, so far removed from everyday experience that it cries out for investigation." (Eoranyic (1998) 64 Cal.App.4th 186, 190.) Example It was proper to detain and patdown a man who had been standing on a corner in a high narcotics area for several minutes, where two other persons nearby, believed to be sellers, had yelled "rollers" to him, after which he had started to leave, then turned towards the approaching cers and reached into his jacket. (Lee (1987) 194 :App.3d 975, 982.) 1, Specific Factors In deciding whether your suspicion was reasonable, the court will lock at all the factors--the "totality of the Circumstances." (Sokolow (1983) 490 U.S. 1, 7-8; Souza (1994) 9 Cal-ath 224, 231.) a. Nighttime/Hieh Crime area certain factors, such as "nighttime" and "high crime" or "high narcotics" area, will not suffice, alone, to justify a detention. ‘However, they are important and relevant, and in combination with one or more other suspicious factors may justify a reasonable suspicion. (Wardlow (2000) 528 U.S 119; Souza (1994) 9 Cal.ath 224, 240-241; Mime. (2992) 9 Cal.App.dth 1244, 1248; Ortiz-Hernandez (sth Cir. 2005) 427 F.3d 587, $73 [officers may consider "nature of the area’as part of the calculus of suspicion, although it's not enough on its own"l.) concerning a "high crime" area, for instance, the California Supreme Court has stated: "An area's reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth pmendment," noting that "it would be the height of naivete not to recognize that the frequency and intensity [of criminal activities] are greater in certain quarters than in others." (Souza (1994) 9 Cal.4th 224, 241; see also Nardlow (2000) 528 U.S 119, 124.) Similarly, the court also recognized that "The time of night ie another pertinent factor in assessing the validity of a detention." (Souza (1994) 9 cal.4th 224, 241; see also Foranyic (1998) 64 Cal.App.4th 186, 190.) Example: Fleeing from officers driving past in a high crime area at noon provided a sufficient basis to detain. (Hardlow (2000) 528 U.S iis.) Rev. 3/06 California Peace Officers Legal Sourcebook SEARCH AND SEIZURE - PERSONS 2.106 Example At 2:00 a.m, in a residential neighborhood known for burglaries and drug trafficking, an officer on routine patrol spotted two persons standing near a vehicle which was parked in a particularly dark location, apparently talking to someone inside the car. when he activated his spotlight and lit up the vehicle's interior, two persons inside ducked down out of sight, and’one of the two persons outside (Souza) tock off running. The officer chased him, stopped him, and patted him down, discovering cocaine in the process. HELD: The detention was lawful under the totality of the eircumstances. The area's reputation, the time of night, and the suspects’ efforts to avoid detection were all proper factors to consider and provided reasonable suspicion of criminal activity. (Souza (1994) 9 cal.ath 224, 242.) Example: At midnight, officers lawfully stopped defendant's car for a taillight violation. After defendant complied with the request to step out of the car and walk backwards with his hands behind his head, the officers grabbed his hands to conduct a weapons search based on the “high-gang location.” HELD: The detention and search based solely on a driver's presence in a high-crime area late at night were unlawful. (Medina (2003) 110 Cal.app.4th 171.) Example An experienced narcotics officer observed a man participate in an apparent hand-to-hand exchange in a carport where the officer knew other drug deals had occurred, and which was in a known drug-ridden neighborhood. The officer had also seen the same man, just before and after the exchange, walk over and reach into an apparent hiding place, namely, the wheel-well of a pickup truck. HELD: There was reasonable suspicion to detain (and patdown) the suspect. Although a person may not be detained for merely being present in a drug-ridden neighborhood, "this setting is a factor that can lend meaning to the person's behavior." (Limon (1993) 17 Cal.App.4th 524, 531-534.) Example: I you spot someone you don't recognize who is standing alone on a street corner in the business district at 4 a.m., your suspicion would be more reasonable in a small town than in Los Angeles. Even so, by itself, this fact probably wouldn't justify anything more than a "consensual encounter." However, if you add another factor or two, such as that the person has bulging pockets, runs away when he sees you, gives you a phony answer, or is holding a "scanner" or a weapon, then you would have enough "reasonable suspicion" to detain him for further investigation. (Broun (1989) 213 Cal.App.34 187.) Rev. 9/03 California Peace Officers Legal. Sourcebook 2.104 Example example SEARCH AND SEIZURE - PERSONS It was reasonable to detain a man with an axe who was riding a bicycle at 3:00 a.m., even hough no "axe crime" had been reported. Some activity is so unusual, so far removed Eom everyday experience that it cries out for investigation." (Eoranvic (1998) 64 cal.App.4th 186, 190.) Race Reasonable suspicion may not be based, in whole or in part, "on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped." (Montero-Camaxao (8th Cir. 2000) 208 F.3d 1122, 1129-1130, quoting an earlier Ninth Circuit case.) In other words, generally speaking, race is simply not a factor which you may consider in calculating reasonable suspicion. indeed, racial profiling, that is, ‘the practice of detaining a suspect based on a broad set of criteria waich casts suspicion upon an entire class of people without individualized suspicion of the particular person being stopped,” is specifically outlawed. (Pen. Code, § 13519.4.) on the other hand, race or ethnicity is still a proper factor to consider if it is part of a description of a specific suspect you are looking for. "Hispanic appearance, or any other racial or ethnic appearance, including Caucasian, may be considered when the suspected perpetrator of a specific offense has been identified as having such an appearance." (Montero-Camarao (9th Cir. 2000) 208 F.3d 1122, 1134, fn. 22.) Bven in such a situation, however, there would have to be additional factors, in addition to the suspect's race, which provide reasonable suspicion and thus justify the detention. ‘The Border Patrol validly detained two vehicles with Mexicali license plates driving in tandem, due largely to the fact that they turned around, at a place where the border agents’ view was blocked, to avoid a newly- opened checkpoint station. However, it was improper for the agents to consider the driver's Hispanic ethnicity as a suspicious factor, given that 73% of the population of Imperial County is Hispanic. In other words, the driver's Hispanic appearance contributed nothing towards the requirement of particularized or individualized suspicion. (Montero-Camarao (Sth Cir. 2000) 208 F.3d 2122, 1131-1135.) Rev. 5/01 California Peace Officers Legal Sourcebook Example: Example Example: SEARCH AND SEIZURE - PERSONS 2.108 An officer observed one white male and several black males leaving a housing project populated by blacks. It was night, a high crime area, and in the past the officer had seen whites in that area at night only to buy drugs. The group dispersed as the officer approached. “The Supreme Court said the detention of the white male was illegal. The reasons of race, time of night and type of neighborhood were teo flimsy to connect the individual with crime. (Bower (1979) 24 cal.3d 636.) (But see Wardlow (2000) 120 s.ch, 673, holding ¢ cr in a high- crime area is enough to detain (although race would remain irrelevant, of course] .) Suspect in 1:00 a.m. convenience-store robbery was described as 19-year-old Mexican with a moustache, wearing a dark jacket Seven minutes later and one-half mile away, an officer stopped a Mexican, approximately 20 years old, who had a moustache. The Getention was valid--even though it was based primarily on race--because race was just part of a matching description. (McCluskey (1981) 125 Cal.App-3d 220.) It was proper to detain two Hispanics seen sleeping in public at about 8:30 a.m. within one and a half miles of the place a woman had been raped by a group of six young Hispanic males, one of whom had been wearing a red shirt, where both suspects were wearing red shirte, and otherwise fit the general description of race and age. (Carlos M. (2990) 220 Cal.App.3d 372.) Rev. 1/02 California Peace Officers Legal Sourcebook. SEARCH AND SEIZURE - PERSONS 2 ce. Ehight I you approach someone or a group and one or more of them walks or runs away, and you give chase, your act of chasing after the person does not cons: a detention. As the United states Supreme Court has made clear, there is no "seizure" until you have actually physically stopped the person, or he stops on his own and submits to your authority. (Hodari D. (2991) 499 U.S. 621, 626.) when officers drove around the corner in their unmarked vehicle, a group of males who had been standing around a red car took off, and so did the car. One officer got out, ran avound the block the other way, and approached within a few feet of the suspect, who was looking over his shoulder while running towards the officer, before the suspect locked up and saw him, whereupon he discarded a rock of cocaine before being tackled. The Supreme Court held that the suspect was not "seized" until he was tackled, because up to that moment, he had not submitted to the officer's assertion of authority. (Hodari D. (1991) 499 U.S. 621, 626; see also Chesternut (1988) 485 U.S. 567 ~“ariving along beside fleeing suspect did not constitute a detention; and Aranqure (1992) 230 Cal.App.3d 1302, 1306.) Even if you yell "stop" or "freeze," display a weapon, or assert your authority in some other manner, Hodari D. makes it clear that there still cannot be a detention until and unless the suspect stops fleeing in response The problem arises, therefore, when you catch the suspect, or when he stops in response to your actions or commands. For at that point, a detention has occurred, and it will be legal, as always, only if it is supported by reasonable suspicion. ‘The United States Supreme Court has declined to create a ‘bright line” rule regarding “flight.” That is, the court has refused to rule either (1) that "flight alone will alwavs justify a detention, or (2) that flight alone can never justify a'detention. Rev. 3/02 California Peace Officers Legal Sourcebook 2.12 Example Example SEARCH AND SEIZURE - PERSONS Instead, both the US Supreme Court and the California Supreme Court have held that “flight” is merely one factor in the “totality of the circumstances” which a court will look at in determining whether reasonable suspicion existed. However, it is an important factor, because fleeing from police officers, as opposed to simply refusing to cooperate, is inherently suspicious and therefore "can be a key factor in determining whether in a particular case the police have sufficient cause to detain.” (Souza (1994) 9 Cal.4th 224, 235.) "Headlong flight--wherever it oocurs--25 the consummate act of evasion; it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." (Wardlow (2000) 528 U.S. 119, 124; Britton (2001) 91 Cal.App.4th 1112, 211-1119.) ‘Thus, when combined with other factors, such as a high’ crime area and/or time of night, you often will have a valid basis to detain. (Fuentes (9th Cir. 1997) 105 F.34 487, 490; see Garcia-Barron (9th Cir. 1997) for a discussion of avoiding border checkpoints.) Fleeing from officers driving past in a high crime area at noon provided a sufficient basis to detain. (Hardlow (2000) 528 U.S. 119.) At 3:00 a.m. in a residential neighborhood known for burglaries and drug trafficking, an officer on routine patrol spotted two persons standing near a vehicle which was parked in a particularly dark location, apparently talking to someone inside the car. when he activated his spotlight and lit up the vehicle's interior, two persons inside ducked down out of sight, and one of the two persons outside (Souza) took off running. The officer chased him, stopped him, and patted him down, discovering cocaine in the process. HELD: The detention was lawful under the totality of the circumstances. The area's reputation, the time of night, and the suspects’ efforts to avoid detection were all proper factors to consider, and together they provided reasonable suspicion of criminal activity. (Souza (1994) 9 Cal.ath 224, 240- 242.) Rev. 3/02 California Peace Officers Legal Sourcebook Example SEARCH AND SEIZURE - PERSONS 2.12a Officers had a sufficient basis to detain a man Standing alone at 4:00 a.m. next to a business where a silent alarm had just been triggered and when the man, upon seeing the officers, started to walk away. (Lloyd (1992) 4 Cal.App.4th 724, 733.) Your Experience Don't overlook your experience. An officer's "specialized knowledge" may render suspicious what would otherwise appear innocent to a layperson (Mims (1992) 9 Cal.app.ath 1244, 1248; Brown (1985) 169 ¢: 1983) 17 cal App ‘The suspect was in a park where marijuana sales often tock place, doing nothing. An apparent stranger drove up, approached the suspect, gave him money for two small, thin, white, filterless cigarettes, and then drove away. Because of the officer's experience and the specifics of what he had geen exchange hands, the court found probable cause to justify an arrest. (Stanfill (1985) 170 cal.App.3 420.) officer safety A detention may also be justified based on officer safety. In Jerry, the U.S. Supreme Court held that the lawfulness of the detention based on something less than probable cause came down to “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." (Terry (1968) 392 U.S a, 27.) Rev. 3/05 California Peace Officers Legal Sourcebook 2.12 SEARCH AND SEIZURE - PERSONS Courts evaluating the lawfulness of a detention based on officer eafety are required to balance the extent of the intrusion upon the individual against the interests of the government, which includes as a significant factor "the interest in minimizing the risk of harm to the officers." (Summers (1981) 452 U.S. 692; see also Glaser (1995) 11 Cal.ath 354, 364.) Example: Police were told that a male juvenile, for whom they had an arrest warrant, was in a certain apartment. Three officers went to the apartment entered after ob consent from the female who lived there, and observed two males seated in the living room. While one officer "swept" the apartment looking for the juvenile and the other officer stood by the door, the third officer asked the two men "if they could just stay seated where they were." He then asked them who they were, what their relationship was to the woman who answered the door, and why they were there. During this time, he noticed that one of the males (Hannah) had dilated pupils, and this soon led to Hannah's arrest. HELD: Because the detention was so minimal (no force, no patdown, brief duration, etc.), it was reasonable and therefore legal, since, viewed "from the perspective of the police officers who entered the apartment," the situation was still potentially dangerous for the officers (they were on unknown turf, did not know the floor plan, did not know the identity of the males or their relationship to the juvenile, etc.). (Hannah (1996) 51 Cal.App.4th 1335.) Rev. 3/05 California Peace Officers Legal Sourcebook. SEARCH AND SEIZURE - PERSONS 2.120 A detention based on officer eafety does not require that the officer also suspect that the detainee was involved in criminal activity. (See Matelski (2000) 82 Cal.App.4th 637, 846-853 (officers arriving at premises to conduct a probation search properly detained a departing couple to see if they were ex-felons, in violation of the probationer’s “non-association” clause]; wilson (1997) 519 U.S, 408, 414-415 [officer justified in ordering unsuspected passenger out of vehicle]; and Yaughan (9th Cir. 1983) 718 F.2d 332, 334-335 [officers justified in detaining and © down passenger in car driven by person for whom arrest warrant had been issued] .) £. Drug Courier Profile ‘The legality of detentions based on a “drug courier profile'--meaning noncriminal factors about an individual, such as coming from Miami, looking nervous, using cash, not having luggage, etc.--has traditionally caused difficulty for the courts Courts have ruled, generally, that such a "profile" will not automatically justify a detention because, by itself, it does not rise to the level of "reasonable suspicion.” ‘Therefore, traditionally it nas been safer for you to use "profile" information simply as a basis for further observations and investigation or for the initiation of a voluntary consensual encounter, unless you have some additional information indicating ongoing criminal activity, such as evasion or the use of an alias However, in Sokolow (1989) 490 U.S. 1, the United States Supreme Court upheld an investigatory stop where: (1) the suspect paid $2,100 for two airplane tickets from a fat roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) hos original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a roundtrip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he and his companion checked none of their four pieces of luggage. The court refused to place any extra weight on these circumstances simply because they fit the DEA's "drug courier profile." Instead, the court used the traditional "reasonable suspicion" test, based on the totality of the circumstances. It Rev. 7/05 California Peace Officers Legal Sourcebook Example: SEARCH AND SEIZURE - PERSONS 2.1Ze vunlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated..., “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’ As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'” (J.L. (2000) 529 U.S 266, 270, quoting from White (1990) 496 U.S. 325, 327, 329°) Although the Supreme Court has made it clear that “reasonable suspicion” is a lesser or lower standard than “probable cause"--both with regard to the quality and the quantity of information necessary to support it--the “totality of the circumstances” must nevertheless be assessed in every case to determine the tip’s reliability. (White (1990) 496 U.S. 325, 330. In White (which the Supreme Court characterized as a vclose case”), the court found that police were entitled to rely on an anonymous tip to detain the suspect because there was sufficient corroborative information, namely, accurate “predictive” behavior. Specifically, the tipster had accurately forecast what the suspect would do later that day (See also Binela-Hernandez (9th Cir. 2001) 262 F.3d 974, 978.) on the other hand, in J.b. (2000) $29 U.S. 266, the Supreme Court held that the anonymous tip was not oufficiently reliable where the tipster merely described a suspect, gave a location, and said he was carrying a gun, and the only corroboration was that a person matching the description was observed fat the given location. (But see Coulombe (2000) 86 Cal.App.4th 52.) Police received an anonymous telephone tip that Vanessa white would be leaving a described address at a particular time in a byown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey's Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case. Officers went to the address, observed a car which matched the description, Saw a woman come out of the described residence at approximately the anticipated time, not carrying anything, and drive toward Dobey's Motel.’ The United States Supreme Court held that this corroboration made the tip sufficiently reliable to provide reasonable suspicion to detain. (thite (1990) 496 U.S. 325, 331-332.) Rev. 7/05 California Peace Officers Legal Sourcebook. 2.1at Example: Example Example Example Example: SEARCH AND SEIZURE - PERSONS An anonymous telephone tip that a young black man, Standing at a described bus stop and wearing a plaid shirt, was carrying a gun, was insufficient to justify a matching suspect's detention and patdown, where the officers did not see a firearm or any threatening or otherwise unusual movements. “All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” ‘The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, sot just in sts tendency to a e 2000) 529 U.S 121 Cal-App.4th An anonymous tipster calling from a pay phone reported that a grey station wagon was parked at a nearby restaurant and that the driver was armed and carrying a kilo of cocaine. Officers chserved defendant leave the restaurant and drive away. A warrants check indicated that the registered owner of the wagon had an outstanding misdemeanor warrant. The officers conducted a felony stop, ordering the driver to get out of the car and to his knees. HELD: The uncorroborated anonymous tip did not provide probable cause for the “felony extraction.” The court intimated that the discovery of the warrant might have provided sufficient independent grounds to stop defendant's vehicle, but defendant's lack of similarity to the physical description on the warrant “immediately dispelled” that basis for the arrest. (Saldana (2002) 102 Cal.app.ath 170.) Information from two individuals, moments apart, both telling the same officer that a similarly described man at a nearby location had a gun, was enough to justify a detention, even though the tipsters’ identities were not obtained, because there were two tipsters, they gave almost identical information, and the officer had a face- to-face opportunity to assess their credibility. (Coulombe (2000) 86 Cal.app.th 52, 55-60, distinguishing Lb) Anonymous telephone tip that a man was selling drugs from a grey Ford Explorer was sufficiently corroborated by officer's observation of what appeared to be a hand-to- hand drugs transaction between a woman standing outside the driver’s door and appellant, who was still parked at the location identified in the call. (Butler (2003) 111 Cal.app.4th 150.) Reasonable suspicion to detain existed where officers responded to an anonymous tip that someone was selling or Going drugs in the hallway of a three-unit building They found a nonresponsive individual crouched on the darkened stairway acting strangely, who put something in his mouth and ran, (Johnson (1991) 231 Cal.app.3d 1, 11.) Rev. 7/05 California Peace Officers Legal Sourcebook. SEARCH AND SEIZURE - PERSONS 2.123 b. Qo4=4 and Cellular Phone Calis Generally, where you have nothing more than a truly anonymous tip (as opposed to a known individual who merely wishes to remain "anonymous"), you need to be very cauticus about taking any action beyond a "consensual encounter" unless you observe suspicious circumstances or obtain consent. However, the nature of the crime being reported may influence whether an anonymous call will support a detention. In J.L., the Supreme Court suggested hat certain anonymous reports, such as a report of a pereon carrying a bomb, would justify a search even without @ showing of reliability given the gravity of the danger alleged in the tip. (2002) 529 U.S. 266, 272-273.) In California, a contemporaneous, albeit anonymous, 3-1-1 report of suspected drunk’ driving can justify a brief nvestigatory detention even without corroboration of illegal activity. (Wells (2006) 38 Cal.4th 2078; Lowry (2005) 129 Cal.App.4th 926.) The courts will look to the “totality of the circumstances" to determine whether an ancnymous 9-1-1 call reporting a completed act is a sufficient basis for a Terry stop. A victim's contemporaneous 9-1-1 call that described the suspect, his vehicle, his location and the details of the crime--assauit with a firearm--was sufficient in Dolly (2007) 40 Cal.4th 458, 471 Example An unidentified 9-1-1 caller reported that a light~ skinned African-American male with a bandaged left hand sitting in the driver's seat of a parked gray Maxima had pulled a gun on the caller after mentioning a gang name. The caller was afraid to give him name because of possible retribution. Two minutes later, the caller, this time identifying himself as "Drew," called back’ to report that he had driven by the parked car and saw that it was black, not gray. Within three minutes, officers located a black Maxima parked in the same location with a Griver matching the caller's description. Officers Getained the driver and his two passengers and found « revolver under the front passenger seat. HELD: The investigative detention was lawful. The 9-1-1 call was a firsthand report of violent criminal conduct requiring immediate investigation to protect public safety; the call was recorded; the caller, who had given a reason for remaining anonymous, reported immediate and detailed facts; and the police responded within minutes. (Dolly (2007) 40 cal.éth 458, 461.) Example: A 9-1-1 call was not an "anonymous tip" under J.L. even though the caller only gave his name and was using someone else's cellular phone. The call provided a basis for a brief detention to investigate the report that the caller had just been threatened with a gun. (Texry= Crespo (9th Cir, 2004) 356 F.3d 1170.) Rev. 5/07 California Peace Officers Legal Sourcebook. SEARCH AND SEIZURE - PERSONS 2 c. Buty to Stop/Us eto Stop ct, Whether you are detaining someone (1) to investigate your reasonable suspicion or (2) co issue a "cite and release’ citation, the suspect has an obligation to stop. A suspect has no right to resist" a lawful detention. (Llovd (1989) 216 cal.App.3a 1425, 1429.) If the suspect doesn't stop, he has violated Penal Code section 148 (obstructing or delaying you in he performance of your duties) (Andre @, (1991) 226 Cal-App.3d 1164, 1169), and you may use whatever physical force is necessary to make him stop. (2991) 231 Cal-App.34 1, 12-13; Gregory $. (1980) 112 Cal.App.3d 764, 778.) Similarly, if a lawful detention (or arrest) has begun in a public place, @ suspect may not defeat it by running inside; you have the right (under the “exigency” or "hot pursuit” doctrine) to follow him or her into the residence. (Lloyd (1989) 216 Cal.App.3d 1425.) D. Investigative Actions - Identification Mere questioning by police during a detention does not constitute an additional seizure requiring additional reasonable suspicion. For example, officers did not need reasonable suspicion te ask a third party detained during the execution of a search warrant questions regarding her identity, Gate and place of birth, or inmigration status. (Muehler v. Mena (2005) 544 U.S. 93.) When you have detained a suspect, you are allowed to take whatever investigative actions are reasonable under the circumstances. Although it is wise to use the least intrusive means available to verify or dispel your suspicion, this is not a constitutional requirement. (Sokolow (1989) 490'U.S. 1.) Common techniques include: (1) questioning the suspect about his identity and conduct; (2) contacting other persons to confirm the explanation, verify the ID, or determine whether the person is wanted; (3) checking premises, examining objects or contacting neighbors or other individuals to determine whether a crime actually occurred; and (4) bringing the victim to the suspect for an in-field "showup. Tf you are going to cite an individual for a Vehicle Code violation--misdemeanor or infraction--you have the right to ascertain and verify his identity. (Valencia (1993) 20 Gal-App.4th 906, 918.) This means he must produce either a driver's license or its functional equivalent for examination, or else you have the discretion to take him into custody under Vehicle Code section 40302, subdivision (a). If he doesn't or can't, or if other suspicious or difficult circumstances arise, you are entitled, but not required, to take additional steps to Gnsure the accuracy of the suspect's identity. (McKay (2002) 27 Cal.dth 601,621--involving a bicyclist; Monroe (1993) 12 Cal.app.@th 1174, 1181-1189--involving a vehicle driver.) Rev. 5/07 California Peace Officers Legal Sourcebook 2.14 SEARCH AND SETZi ~ PERSONS Example: Officer, who had made a traffic stop and ordered everyone out, could properly check for registration where the river had no license, denied ownership, and said the other occupants were hitchhikers. When he observed a wallet on the front seat, it was proper to seize it and, after everyone denied owning it, to open it to determine ownership. (Webster (1991) 54 Cal.3a 411, 431.) Example: During a traffic stop, the driver gave his name but denied having a driver's license or vehicle registration. Prior to issuing a citation, it was proper for the officer to en vehicle a limited se. of the areas wnere such documentation "reasonably may be expected to be found." This included locking under the driver's and front passenger's seat, where a wallet, drugs, and paraphernalia were discovered and searched (Arturo D. (2002) 27 Cal.dth 60; see Ch. 4-II-F.) Example: It was permissible to use the suspect's car key to help establish identity by inserting the key into the locks of various cars parked in the lot until he found the right car. ($109,179 (9th Cir. 2000) 228 F.3d 1080, 1086-1088.) However, except for this type of limited vehicle search that is permitted because the suspect's identity is at issue, you Should be very careful about conducting other searches for identification during a detention, such as by reaching into a suspect's clothing or looking through his wallet. One published appellate case specifically prohibits a “patdown search" for identification even during a traffic stop. (Garcia (2006) 145 Cal.App.4th 782, 786 (but note that the only yument in the trial court was that the officer could conduct a Terry “patdown search for identification]. Normally, a search is not permitted unless (1) you have consent, (2) you are concerned about a possible weapon, (3) you have “probable cause" to arrest and/or search, or (4) it is a "last resort," that is, you have already given the detainee the opportunity to cooperate by following your requests, and he has refused. Example: If a suspect admits he has identification on him but refuses to produce it, you may conduct a limited search for it Example: If the suspect produces ID that you know is false, you have probable cause to arrest for a violation of Penal Code section 148.9, and you may conduct a limited search for other ID. Example: A possible murder suspect was discovered and detained shortly after the homicide. During a patdown for weapons, the officer felt a wallet. Because the suspect had already said he didn't have any identification on him, it was proper for the officer to retrieve the wallet and look through it. ‘The suspect has no constitutional right to keep his identification a secret under the circumstances existing here." (Loudermilk (1987) 195 Cal.app.34 $96.) Rev. 5/07 California Peace Officers Legal Sourcebook Example: Example: SEARCH AND SEIZURE - PERSONS 2.14a If a suspect gives his name, insists he has no ID, but you can see a wallet in his pants pocket, you may ask him to take it out and look through it while you observe him for your own protection. (Long (1987) 189 Cal.App.3d 77.) ‘The U.S. Supreme Court has drawn a distinction between a Getainee's duty to identify himself and his duty to answer non- identification questions during a lawful detention. In Berkemer (1984) 468 U.S. 420, 439, the court stated that a detainee is not obligated to answer any questions you put to him during a lawful detention. (christian (9th Cir. 2004) 356 F.3d 1103.) However, in Hisbel, the Supreme Court clarified that it wae net veferring in Berkemer to questions regarding identity. The court upheld as constitutional a Nevada “stop and identify" statute and found that a detainees failure to identify himself could be the basis for a lawful arrest under a companion statute almost identical to Penal Code section 148 (Hiibel (2004) 124 8.ct. 2451.) unlike Nevada and 20 other states, California does not have a statute mandating that a detainee identify himself, and that obligation cannot be read into Penal Code section ide. Although you may take whatever steps are reasonably necessary under the circumstances to ascertain the identity of a person you have lawfully detained, Hiibel does not provide a means for arresting someone for failing or refusing to identify himself. The Ninth Circuit has ruled chat a suspect’s failure to identify himself cannot, on its ow, justify an arrest: "the use of Section 148 to arrest a person for refusing to identity herself during a lawful Terry stop violates the Fourth Amendment's proscription against unreasonable searches and seizures." (Martinelli (9th Cir. 1987) 820 F.2d 1491, 1494; Ghristian (9th Cir. 2004) 356 F.3d 1103, 1106; see also Quiroga (1993) 16 Cal.App.dth 962, $68, fn. 2.) Likewise, you ehould not arrest or cite a "loiterer" or nwanderer" under Penal Code 647, subdivision (e), for failing to identify himself because the U. S. Supreme Court has ruled that the subdivision is unconstitutionally "vague." (Lawson (1983) 461 U.S. 352.) Note, however, that it is a violation of Penal Code section 148 for a suspect who has been arrested for a felony to fail to orally identify himself during a routine booking interview. It did not constitute a violation of Penal Code section 148 for an arrested suspect to fail to give his name in response to questions directed at him while being driven to the station "because it did not delay or obstruct a peace officer in the discharge of any duty within the leaning of the statute." The officer had no compelling reason to complete the "booking sheet" until the suspect arrived at jail. However, at the jail, the police had the right to guestion defendant about his identity during a routine booking interview without implicating the Fifth Amendment, and the suspect's refusal to verbally identity himself constituted a violation of Penal Code section 148 just as much as if he had fled from an investigatory detention or physically struggled with a peace officer. (Quiroga (1993) 16 Cal.App.dth 961, 972.) Rev. 11/04 California Peace Officers Legal Sourcebook 2.14b SEARCH AND SEIZURE - PERSONS A person’s failure to identify himself may, if combined with “belligerent” conduct, provide a basis for a detention. Example officers responded to a call that two men in a crowded park had a firearm. & witness who had been threatened pointed out a group of three men. Defendant, who broke away fxom the group and approached one of the officers, refused to identify himself, refused to keep his hands away fxom his pockets, was hostile and aggressive, and refused to submit to a patdown search. HELD: The detention and patdown were reasonable given the circumstances. (Lopez (2004) 119 Cal.App.4th 132.) ce/Physical ge raints Generally speaking, you should avoid using force and/or physical restraints, such as handcuffs or guns, during a detention situation whenever possible. These "indications of custody” may cause a court to view the detention as an arrest. "When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause." (Justin B. (1999) 69 Cal.App.4th 879, 887; see also Carlos M. (1990) 220 Cal.App.3d 372, 384.) officer placed handcuffs on an unarmed suspect "for your safety and mine." Despite the fact the suspect seemed to agree to the cuffs, the court found that the officer had used excessive force and turned a valid detention into an invalid arrest. (Campbell (1981) 118 Cal.App.3d 588; Ricardo D. (Sth Cir. 1990) 912 F.2d 337.) on the other hand, you can use whatever precautionary safety measures are reasonable under the circumstances. During a lawful detention, officers are ‘authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop.” ($109,179 (9th Cir, 2000) 228 F.3d 1080, 1084.) The use of force, handcuffs, ete., does not necessarily turn a detention into an arrest. (Celis (2004) 33 Cal.4th 667, 675-676-- stopping defendant at gunpoint, handcuffing him, and ordering him to sit on the ground for two minutes was a detention, Rivera (1992) @ Cal.App.4th 1000, 1007--use of police dog to search and hold” (bite) possibly armed suspect did not convert detention into arrest.) Particularly in a high-risk situation it may be proper to order @ suspect to the ground, handcuff him, place him in your patrol unit, or even confront him with your gun drawn. (Bowen (1987) 195 Cal.App.34 269; Orozco (1981) 114 Cal.app.3d 435; Tavlor (1986) 178 Cal.App.3d 217.)Remember that the shorter the period of time such extreme measures are used, the better In determining whether the contact was a lawful detention or an unlawful arrest, courts will look to the “totality of the circumstances" and evaluate (1) the intrusiveness of the detention (i.e., the methods used by police, and how severely the suspect's liberty was restricted) and (2) the justification for using the force or restraints that were employed (i.e., the danger posed to the officer). (Rousseau (9th Cir. 2001) 257 F.3d 925, 929; accord, Celis (2004) 33 Cal.ath 667, 674-675.) Rev. 11/04 California Peace Officers Legal Sourcebook Example: Example: Example: Example: Example Example: SEARCH AND SEIZURE - PERSONS 2.15 Officers who conducted surveillance for two days and part of the ongoing investigation of a statewide narcotics smuggling ring believed that Celis was concealing drugs or drug proceeds in a previously deflated tire too large for his van. Celis was stopped as he was rolling the tire out the back door of his residence toward his accomplice’s truck. Celis was detained at gunpoint, hand-cuffed, and ordered to sit on the ground for two minutes while officers searched his residence. HELD: The detention was not converted into an arrest based on the officers’ reasonable use of force and restraint. (Celis (2004) 33 667, 675-676.) In contacting a suspected drug dealer at a motel room, where the suspect failed to produce identification and gave inconsistent answers, it remained a “detention,” not an arrest, even though the officer ordered the suspect to place his hands on his head, unholstered his firearm, moved the suspect to another room, and detained him there for 17 to 20 minutes *Neither handcuffing a suspect nor relocating a suspect automatically turns a detention into an arrest where these actions are reasonably taken for safety and security purposes.” (g109,173 (sth Cir. 2000) 228 F.3d 1080, 1085.) Police chased a suspect on foot, tackled him, and “wrestled” with him before handcuffing him and standing him up. Since the officers used no more force than was necessary to effectuate the detention, their actions were legal and did not constitute an arrest. (Johnson (1991) 231 Cal.App.3d 1, 12.) It remained a valid detention, not an arrest, where the officer handcuffed a suspected purse-snatcher to a guard-rail and waited 25 minutes for the victim, who had been summoned inmediately, to arrive at the scene to make identification: (Bowen (1987) 195 Cal.App.3d 269.) Responding to a 9-1-1 call and believing that Gallegos was the burglary suspect, police stopped his truck, ordered him out of the cab at gunpoint, handcuffed him, and transported him in the back of the patrol car to the scene of the burglary. Ina § 1983 action, the Ninth Circuit held that detaining Gallegos for the 45 to 60 minutes necessary to determine if he was the burglary suspect, given the totality of the circumstances, “fell within the bounds of a permissible investigatory stop." (Gallegos (9th Cir. 2002) 308 F.3d 987.) Following a high-speed chase (85 mph on surface streets), a school district police officer used his police vehicle to block defendant's car, then got out and pointed his revolver to detain defendant. HELD: The force used was reasonable to protect the officer and maintain the status quo. (McHugh (2004) 119 Cal.App.4th 202.) Rev. 21/04 California Peace Officers Legal Sourcebook SEARCH AND SEIZURE - PERSONS 2.17 Example: At least three officers woke up a 17 year old in his bedroom at 3:00 a.m., told him they needed "to go and talk," placed him in handcuffs, took him outeide in January without shoes and wearing only boxer shorts, transported him in a patrol car to the crime scene, and then drove him to the Sherift’s office for questioning. HELD: Thie wae an unlawful arrest. Any confession "obtained by exploitation of" the illegal arrest would have to be suppressed. (Kaupp (2003) 538 U.S. 626.) Example: Where suspected fenale drug dealer was detained outside apartment for 35-40 minutes, ordered not to speak to companion or touch anything, then taken into darkened bedroom in presence of three male officers for examination by ultraviolet light, the detention became an arrest, (Baron (9th Cir. 1988) 860 F.2d 911.) Example: It was a detention, and not an arrest, for officers to transport defendant in a police car to her residence to determine why she had reported that she had “done something bad” to her children. (Charley (9th Cir. 2005) 395 F.3d 1074, 1081.) Example: It did not constitute an illegal arrest or detention of a minor for police to drive him to the station 90 minutes away for questioning, having first obtained consent from him and his mother. (Gilbert R. (1994) 25 Cal.App.4th aii, 1125.) Similarly, if an in-field identification or "showup" is desired, you should bring the victim or witness to the scene of the detention if at all possible. As a general rule, the courts do not want you to transport the suspect to the victim. However, there are exceptions to this general rule. The major exceptions are: = when you have probable cause to arrest the suspect; - when you have the voluntary consent of the suspect; Note: The consent can be voluntary even though it is conditional. - when the victim cannot be moved; or - when transporting the suspect to the victim is the best (or only) practical alternative (¢.g., no other officers available). (Harris (1975) 15 Cal.i@ 384; Rafael (1982) 132 Cal.App.3d 977; Gatch (1976) $6 Cal.App.3d 505.) Example: It was reasonable for a single officer to handcuff two Hispanic suspects, wao had no identification and could not speak much English, and to transport them for an in-field "show-up" at a nearby hospital where a traumatized gang-rape victim was undergoing a lengthy examination, (Carlos M. (1990) 220 Cal app. 34 372.) Rev, $/05 California Peace Officers Legal Sourcebook. 2.18 SEARCH AND SEIZURE - PERSONS G. Time Limitations "Time" or the "duration" of a detention is another factor you must be aware of. A detention is temporary and may last no longer than is nécessary to resolve the circumstances that justified its initiation. In other words, a detention can be legal at its beginning and then become illegal if you extend it beyond what is reasonably necessary under the circumstances. On the other hand, there is no set time limit for an investigative detention. The key is simply whether you diligently took reasonable steps to confirm or deny your suspicions. (Sharpe (1985) 470 U.S, 675, 686-688.) 1. Increased Suspicion Many times, civcumstances will come to light during a detention (such as demeanor, conduct, observation of suspicious objects) that will change its focus, justify extending its duration, or provide probable cause for arrest. (Sharpe (1985) 470 U.S. 675; Russell (2000) 81 Cal.App.ath 96, 102-108.) Example A stop for erratic driving was properly extended to about 25 minutes to resolve possible drug- trafficking, given an overwhelming masking odor, conflicting answers, and other circumstances (Russell (2000) 81 Cal.App.th 96, 101-107; Mayo (Sth Cir, 2005) 394 F.3d 1271, 1276 [detention permissibly extended to 40 minutes as evidence of possible criminal activity continued to unfold). Example: A detention of a suspected drug dealer at a motel for 17 to 20 minutes was reasonable where he could not produce any identification and gave inconsistent answers. ($109,179 (sth Cir. 2000) 228 F.3d 1060, 1084-1085.) Example: A traffic stop, originally based on an excessively loud muffler, was validly prolonged to ascertain positive identification and vehicle ownership where the driver did not have a license, the car was not registered to any of the three male occupants, the occupants gave conflicting answers to questions, etc. (Valencia (1993) 20 Cal.App.4th 906, 918- 919.) Example A citizen reported and described a suspicious- acting stranger in a residential area where many daytime burglaries had occurred. Later, the same citizen reported that the suspect was "Concealing something under his coat." An officer responded and spotted the suspect with large items in his pockets; a portion of a camera was visible. The officer detained the suspect, told him about the report and started asking questions, which led to the discovery of stolen property. HELD: The detention, although based on "slight" facts, was nevertheless valid, and the 15-20 minutes it took to resolve the matter was reasonable under the circumstances. (Backey (1978) 85 Cal.App.3d 1020.) Rev. 3/05 California Peace Officers Legal Sourcebook Example Example Example: SEARCH AND SEIZURE - PERSONS 2.188 During an equipment violation stop, the officer noticed an air compressor on the back seat in sufficiently suspicious condition to justify searching it, even though he was not aware that any such compressor had been reported stolen. (Gorak (1987) 196 Cal.App.3d 1032.) Without knocking or saying anything, a man walked into a house where officers were executing a search warrant. He denied living there, but was unable to give a reason for being there. A pat search revealed a large wad of bills ($3100). Although he produced some identification, there was reason to suspect its accuracy. The court held that it was reasonable to extend the detention for the hour it took to make telephone calls and run checks, to conduct a consent search of the man's vehicle (where more cash was found), and to consult with each other and other personnel to decide what course of conduct to follow, since their suspicions had been increasing and all'their steps were taken Giligently in an effort to determine the man's connection with the drug-dealing residence, i.e., to resolve the original reason for the detention (quexta (1990) 218 Cal.app.3d 744.) Decreased Suspicion on the other hand, if the suspect answers all questions about the suspicious circumstances satisfactorily, so that your suspicion decreases or disappears, you must let him go. An officer made stop for erratic driving, but determined the suspect was not under the influence of alcohol or drugs. Nevertheless, the officer then asked for the suspect's driver's license When it was produced and was in good order, the officer went on to ask for the registration. Observations which the officer made as the suspect retrieved the registration from the glove compartment led to his arrest for possession of a concealed firearm. However, the court threw out the observation, noting that at the time it was made, the officer "had no legitimate reason for detaining [the suspect] further or for pursuing any further investigation of him." (Bello (1975) 45 cal App.3d 370.) Of course, it is possible for your original suspicion to dissipate, while suspicion about a different or unrelated offense arises. There is no problem in "switching offenses” this way, as long as the original detention isn't unlawfully prolonged before your suspicion about the second offense begins. Rev. 11/00 California Peace Officers Legal Sourcebook Example: Bxample Example: SEARCH AND SEIZURE - PERSONS 2.19 Mixanda Warnings ‘the general rule is that you do not have to give Miranda warnings to someone you have detained (1) on reasonable suspicion, (2) for a "cite and release" offense, or (3) for Ninguiries"--especially about identity--made at the scene of a crime. (Berkemer (1984) 468 U.S. 420; Epperson (1986) 187 Cal.app.34 115; Clair (1992) 2 cal.ath 629, 679.) indeed, Miranda warnings are never necessary unless you have both "Custody" and "interrogation"; and a person who is being "detained"--even though he is not free to leave--is not normally considered to be in "custody," which is defined as being under actual arrest or subject to equivalent physical restraints. (Stansbury (1994) $11 U.S. 318, 322.) Two officers, responding to the scene of reported early- morning buzglary, spotted a lone male near the scene who partially matched broadcast descriptions of one of the suspects. They stopped him and asked him where he was coming from, and his answer was later used against him at trial. HELD: His answer was admissible, even though the officers had not advised the suspect of his Miranda rights, because he was only being detained and was not in "custody." (Eulcher (1987) 194 Cal.App.3d 749.) Officer who made a suspected DUI vehicle stop and administered an FST, which the suspect failed, did not heed to give Miranda warnings before inquiring about what the suspect had had to drink. (Bruder (1988) 488 U.S. 9; see also Bellomo (1992) 10 Cal.App.4th 195.) om the other hand, if, at the time of questioning, the level of force you use on the suspect--regardless of whether such force is reasonable or unreasonable--is equal to what you would use during an actual arrest, then "custody" exists for Miranda purposes Suspect should have been Mirandized where he was "gurrounded by at least four officers, several vehicles and a helicopter, and held at gunpoint" when "questioned" by officer (who showed suspect suspicious items of property). (Taylor (1986) 178 Cal.App.3d 217, 229-230.) From the above, you should be able to see that a "seizure" (detention) under the Fourth Amendment is not necessarily the same as "custody" for purposes of Miranda. (see Brendlin (2006) 38 Cal.4th 1107.) Rev. 9/06 California Peace Officers Legal Sourcebook 2.20 SEARCH AND SEIZURE - PERSONS You should algo realize that the amount of “probable cause" you have when dealing with a suspect has no bearing whatsoever on the question of when Miranda warnings are necessary and that Mizanda advisenents are never necessary unless you are trying to obtain an admissible statement. (See Chapter 7, Statements," for a more detailed discussion.) I. Searches During Detentions (Patdowns/Frisks! During a detention, you have no power to conduct a general, full, exploratory Search of the suspect. (Of course, if the detainee is on parole or searchable probation, you are entitled to search him without any suspicion of criminal activity (Reyes (1998) 19 Cal.ath 743; see discussion in Ch. 5, sec. vit.) However, you may conduct a patdown or limited weapons search of someone’ you have detained, but (1) only for weapons, (2) only of his outer clothing, and (3) only if you have specific facts which make you feel in danger, (Zerry (1968) 392 U.8. 17 Elippen (9th Cir. 1981) 924 F.2d 163, 166; Hill (1974) 12 Cal.3d 731.) ‘Standard procedure” isn't good enough. (Santos (2584) 154 Cal .app.3d 1178.) You must reasonably auspece that the person is armed or may be armed (Dickerson (1993) 508 U.S. 366, 373; Limon (1993) 17 Cal.App.ath 524, 532), although you do hot need to be positive ($109,179 (sth'cir. 2000) 228 F.3d 1080, 1086; Prank V, (1991) 233 Cal.App.34 1232, 1240; Wright (1988) 206 Cal.App.3d 1107; Stephen L. (19e4) 162 Cal.app.2d 257). ‘The courts are quite supportive of your safety. (Elippen (9th Cir. 1991) 924 F.2d 163, 165; Frank V. (1991) 233 Cal.App.3d 1232, 1238; Snyder (1992) 11 Cal.App.dth 389, 393; Milson (1997) 59 Cal.App.4th 1053, 1050-1051.) But at the very least you need a potentially dangerous situation to justify a patdown search. Dealing with a suspected dangerous felon is by definition enough cause Example It wae illegal for a deputy to frisk a man who was sitting in a stopped car, engine running, in the middle of a one-lane rural dirt road, even though the man had no License or other identification, refused to let the deputy search his vehicle, and was nervous and eweating, and even though the deputy had discovered a film canister containing baking soda, since none of these factors would lead an officer to reasonably believe that a weapon might be used against him. (The frisk produced cocaine.) Despite the fact that every encounter between a citizen and a police officer holds some potential that the citizen may be armed, "specific and articulable" facts are necessary which Show that the suspect may be armed and dangerous. (Dickey (1994) 21 Cal.Aapp.4th 952, 986.) Rev. 5/02 California Peace Officers Legal Sourcebook Example: Example: Example: SEARCH AND SEIZURE - PERSONS 2.208 Officer made a DUI stop at night for erratic driving The driver gave false identification, admitted he had recently done time for robbery, and was wearing a bulky jacket which he had trouble keeping his hands out of. HELD: 1t was legal co order him out, pat him down, and remove what felt like syringes from his jacket pockets. (autzy (1991) 232 Cal.App.3d 365; see also Mims (1977) 434 U.S. 106, 112--bulge under sportcoat was enough to justify patdown.) At 1:15 a.m., officers made a valid stop of a vehicle which had bean driving slowly with ite lighte out ina h crime area. The driver got out of the car to meet fficers, leaving two other males inside. when asked for his license, the driver said it was in his sock Fearing for his safety, the officer conducted a quick, cursory patdown search’ of the driver and found a knife inside the sock. Under all the circumstances, the patdown was justified. (Barnes (1983) 141 cal.app.3a 854; Guillermo N. (1962) 130 Cal.App.34 642.) the While on routine patrol one morning, two officers spotted a young man looking into two parked cars in an alley where many complaints of criminal activity-- including vehicle tampering-- had originated. As the officers drove by slowly, the suspect tried to stay out of view behind a dumpstér. When they approached him and began talking to him, he became very nervous, boisterous, angry and antagonistic - "borderline combative." The court said it was proper to pat him down (he was nearly 6* tall, 190 1bs.). "Under such circumstances, they were not required to await an actual assault before assuring themselves that the detainee was not armed with a lethal weapon." (Michael §. (1983) 141 Cal.app.3d 814.) Rev. 3/97 California Peace Officers Legal Sourcebook 2.20 Example: Example: Example: Example: Bxample: SEARCH AND SEIZURE - PERSONS An officer who responded to a report of several suspicious persons in a Taco Bell parking lot was justified in detaining and immediately patting dow one male who turned away when the officer arrived, since the officer saw a large heavy object in the suspect's jacket pocket which he reasonably believed might be an illegally concealed weapon. (Miles (1987) 196 Cal.app.34 612.) Patdown of man and woman in parked car upheld where lone officer was responding to a reported "prowler" late at night in closed business district, occupants could not produce ID and spoke only in spanish, which he could not understand. (Castaneda (1995) 25 Cal.App.ath 1222 1230. An officer properly detained a male who was walking along a street in a high burglary area, carrying a television set and tan jacket, items which had been reported stolen froma nearby residence earlier that same day. A patdown was justified, "It is reasonable for an officer to believe that a burglar may be armed with weapons, or tools such as knives and screwdrivers which could be used as weapons, and that a patdown is necessary for the officer's safety. (wyles (1975) 50 Cal.app.3d 423.) an officer, who was validly inside a motel room and who had a legal basis to detain one of the occupants, was justified in patting down clothing for possible weapons before handing the clothing to the detainee. (Wright (2988) 206 Cal.App.3d 1107.) During the execution of a narcotics search warrant, it was legal for an officer to patdown a man who was Sitting on a couch in the living room, even though (1) the man was completely passive and not saying or doing anything threatening, (2) there was nothing beyond the inherent danger of the situation to specifically indicate that the man might be armed and dangerous, and (3) the search warrant did not authorize a search of his person (Thurman (1989) 209 Cal.App.3d 817.) Rev. 3/97 California Peace Officers Legal Sourcebook Example: Example Example Example Example: SEARCH AND SEIZURE - PERSONS 2.200 An officer who intended to ask a few questions of a man during consensual street encounter was entitled to grab the man's wrist when he started to reach into a pocket which had a weapon-like bulge, since those circumstances provided a basis to detain Aim to check for weapons. (Rosales (1989) 211 Cal.app.3d 325, 330.) It was legal for an officer, responding to a "panhandler" complaint, to patdown the suspect where he saw a large ulge in the front waistband of the suspect's trousers ‘Our courts have never held that an officer must wait until a suspect actually reaches for an apparent weapon before he is justified in taking the weapon. Such a holding would eviscerate the reason, officer satety, for a limited patdown during a Terry stop." (Snyder (1992) 11 Cal.app.4th 389, 393.) officer could lawfully patdown a person who put his hands back inside his bulky jacket after being told to take them out, at least where the person being contacted was in a gang neighborhood at night and had just left a house known for gang activity. (Fzank V. (1991) 233 Cal.App.3d 3232, 1240.) It was proper to detain and patdown a man who had been standing on a corner in a high narcotics area for several minutes, where two other persons nearby, believed to be sellers, had yelled "rollers" to him, after which he had started to leave, then turned towards the approaching officers and reached into his jacket. (Lee (1987) 194 Cal.App.3d 975, 982.) officer was justified in patting down a suspect for weapons where the officer and his partner were outnumbered, had a basis for believing the suspect was dealing drugs, knew that drugs dealers often carry weapons, and had first-hand knowledge about the prevalence of drugs and weapons in the area. "The connection between weapons and an area can provide further justification for a pat-search." "'It is not unreasonable to assume that a dealer in narcotics might be armed’ and subject to a pat-search." (Limon (1993) 17 Cal.App.4th 524, 534-535; see also $109,179 (9th Cir. 2000) 228 F.3d 1080, 1086, where the Ninth Circuit, in talking about a suspected drug dealer, said that the officer's experience "provided him with the knowledge that narcotics suspects are often armed and dangerous " Rev. 9/02 California Peace Officers Legal Sourcebook 2.200 SEARC AND SEIZURE - PERSONS Exampl It was proper to patdown the male driver of a car containing two other people named in a narcotics search warrant, who was driving them back to the premises named in the warrant, due to the "apparent close physical and functional association" between them and the high danger inherently involved in executing a narcotics warrant (Samples (1996) 48 Cal.App.ath 1197, 1208-1213.) You may also conduct a limited search for weapons on a person you are going to transport in your police vehicle, even after a aimple traffic violation. (Willy L. (1976) 56 Cal.App.3d 256, 261.) Remember, however, that if you have no duty to transport the person--for instance, if you are offering to give him a ride as a favor--then you must tell the individual that he has the right to refuse, and that if he accepts the ride, he will be subjected to a search for weapons. (Scott (1976) 16 Cal.3d 242.) Example: an officer stopped a vehicle on a busy freeway at night because of faulty registration. Neither the driver nor the passengers had a valid driver's license, and the vehicle had to be ‘There was no obligation to advise the occupar they could refuse the ride, because the officer had a duty to transport them. It was too dark and dangerous, and also illegal, for them to walk. (Tobin (1990) 219 Cal.App.3d 634.) In addition to needing a factual basis for patting down a detainee, you must also be careful not to exceed the permissible "scope" of the frisk. Remember that you are authorized to leok for weapons only, so your search must be Limited to that purpose. (Dickerson (1993) 508 U.S. 366, 373.) Naturally, if you discover a weapon, or a suspected weapon, you may seize it. Likewise, if you are not sure whether the object is or is not a weapon, you are entitled to check it out, that is, to "search" further, for instance, by feeling it more thoroughly, or by reaching into the pocket where it is located. Example: When, during the course of a pat-search for weapons, an officer felt a hard, rectangular object in the suspect's pocket which he did’not recognize and which he thought might be a knife, it was legal for him either to reach into the pocket and remove the object, or to simply widen the pocket and look into it. "The police are not required to grab blindly after a frisk reveals a possible weapon, A blind grab could risk injury either to the officer or the suspect." (Limon (1993) 17 Cal-App.4th 524, 535-536.) Rev. 1/02 California Peace Officers Legal Sourcebook Example: SEARCH AND SEIZURE - PERSONS 2.20e However, once you realize or decide that an object is not a weapon, you must move on, because any additional feeling, grabbing, or manipulating of the item is outside the scope of a Terry patdown for weapons and will be considered an illegal Search, resulting in the suppression of evidence In other words, you are entitled to seize any "non-threatening contraband" which you detect during a protective patdown search only if the search stays within the bounds marked by Terry. aning that the contraband nature of the object becomes immediately apparent" to you, through your sense of sight, smell or touch, while you are still in the process of searching weapons, (Dickergon (1993) 508 U.S. 366.) During the patdown of a suspected narcotics user/buyer, an officer felt a small lump in the suspect's jacket pocket. When he “examined it with his fingers," it slid and felt like a lump of crack cocaine in cellophane Accordingly, the officer reached into the pocket a retrieved a small plastic bag containing some crack cocaine. HELD: Tt was an illegal search for the officer to squeeze, slide, and otherwise manipulate the contents of the jacket pocket because when he did that, he had already concluded that the pocket did not contain a weapon. (Dickerson (1993) 508 U.S. 366, 379.) During a limited patdown for weapons, a deputy felt a soft object which he squeezed enough to conclude it was plastic with something in it. He reached into the Getainee's pocket and retrieved a baggie with some marijuana and cocaine. HELD: The seizure was unlawful "Feeling a soft object in a suspect's pocket during a pat-down, absent unusual circumstances, does not warrant an officer's intrusion into a suspect's pocket to retrieve the object." (Dickey (1994) 21 Cal.App.4th 952, 957, quoting a 1970 California Supreme Court case.) Rev. 9/01 California Peace Officers Legal Sourcebook 2.208 Example: Example Example SEARCH AND SEIZURE - PERSONS Lastly, there are two other ways to lawfully conduct a patsearch--or a conplete search--for weapon or drugs. The first is if you have probable cause to believe auch an object ip on the person. This is because your probable cause also rovides probable cause to arrest, and the search is then justified as incident to that arrest, even though the search comes first. (Valdez (1987) 196 Cal‘app.3d 799; Limon (1993) 17 Cal.App.4th 524, 538.) officers patrolling a high narcotics area observed two men attempt to exchange money for a plastic baggie when they were interrupted by someone yelling, "Police." The “puyer" fled, The "seller" (Mims) put the baggie in his front pante pocket, walked up the to porch of a nearby residence and knocked. One officer approached Mims, ascertained that he did not live there, patted the pants pocket, felt some small chunky material, and pulled out the baggie, which contained rock cocaine. HELD: This search was legal as incident to Mim's arrest, even though it preceded his formal arrest, because the facts known to the officer (exchange, lookout, baggie, flight, neighborhood), in combination with his expertise provided probable cause to arrest. (Mims (1992) 8 Cal.app.4th 1244.) Officer who smelled PCP as he approached suspect was entitled to search him for it. (Divito (1984) 152 cal.App.3d 11.) An officer, upon discovering a hide-a-key in the pocket of a suspected drug dealer he was patting down, acquired probable cause to arrest. Therefore, he was then entitled to open (search) the key container incident to the custodial arrest, even though it had not actually taken place yet. "Ah officer with probable cause to arrest can search incident to the arrest before making the arrest." (Limon (1993) 17 Cal.App.4th 524, 538.) ‘The second is if you obtain a valid consent from the suspect (Puentes (9th Cir. 1997) 105 F.3d 487, 489--"Reaching into Fuentes's pocket did not have to be justified as a Terry frisk, because Fuentes consented to it.") Rev. 11/97 California Peace Officers Legal Sourcebook. Example Example: Example: SEARCH AND SEIZURE - PERSONS 2.22 Seizures During Detentions 1 In General ‘The rule for seizures during detentions is pretty much the same as it is for searches: You may seize any weapon or other hard object usable as a weapon which you lawfully discover during a detention or patdown, but seizure of any "non-weapon" or "non-threatening" object will be illegal unless you have consent or probable cause to believe it is contraband. n View, Sm: In general, if you see a weapon, some contraband, or evidence of a crime in plain view during a detention, you are entitled to seize it without any further justification. This is because observing something in plain view is not considered a "search" at all under the law. (Horton (1990) 496 U.S. 128.) The same is true if you become aware of contraband or evidence of a crime through your sense of smell or (during a lawful patdown) touch. (Dickerson (1993) 508 U.S. 366.) During a patdown, the officer felt an unusual lumpy object by the suspect's knee. In combination with other suspicious factors the officer had already discovered (the smell of methamphetamine, a gram scale, a small empty baggie, and beepers) this provided probable cause to arrest. Therefore, it was legal to seize the suspected contraband. | (Dibb (1995) 37 Cal.App.4th 832, 837.) When pat-searching a detainee for weapons, an officer felt a clump of small resilient objects. He believed, based on his experience, that the objects were felt heroin-filled balloons. Because he now had probable cause to arrest, it was legal to reach inside the suspect's jacket and retrieve two clear bags, each containing 50 rolled balloons (Lee (1987) 194 Cal.app.3d 975.) Minor denied that he was involved in a recent carjacking and that he was in possession of any keys. The officer who conducted a lawful patdown earch pulled cut what felt like a set of keys in the minor's pocket. HELD: The officer had probable cause at the time of the "plain feel" search to believe that the keys were evidence linking the minor the carjacking based on the minor's similarly to the description of one of the suspects, his repeated "inspection" of the stolen vehicle, a police dog's tracking a scent inside the stolen truck vehicle to the minor, and the minor's denial of having any keys in his possession (Lennies H. (2005) 126 Cal.App.4th 1232, 1238.) Rev. 3/05 California Peace Officers Legal Sourcebook 2.22 ‘Example: Example: Example Example SEARCH AND SEIZURE - PERSONS While patting down a man who was present in a house where a earch warrant was being executed, an officer felt a large bulge in the man's jacket. Believing that it might be a gun, he put his hand in the pocket and felt the object, which he then recognized ae very large rocks of cocaine. He retrieved the cocaine, and the court upheld the seizure. (Zhuzman (1989) 209 Cal.App.3d 817.) An officer responding to a "panhandler" complaint noticed a large bulge in the suspect's front waistband. For officer safety, he pat-searched the suspect, concluded that the object was a bottle, and withérew ic. HELD: The officer had the right to feel and retrieve the bottle (a full fifth of brandy) as it was a potentially dangerous weapon (Snyder (1992) 12 Cal.App.dth 389, 392-393.) Containers IE you come across @ container on the person you are detaining, you are @: d to seize it and open it, as long as it is reasonable for you to think it is a weapon or contains a weapon. An officer was alone in a motel room with a female suspect whose companion had been armed with a large knife the day before. when the officer turned his back, the suspect grabbed her make-up bag. Because it was reasonable to suspect she was arming herself, the officer was entitled to seize the bag and, because it was heavy and possibly contained a gun, to open it. (Flippin (9th Cir. 1991) 924 F.2d 363, 166.) During the course of a pat-search for weapons, an officer felt in the suspect's pocket a hard rectangular object that he thought might be a knife. It was legal for him either to reach into the pocket and remove the object or simply to widen the pocket and look inside. "The police are not required to grab blindly after a frisk reveals a possible weapon. A blind grab could risk injury either to the officer or the suspect." (Limon (1993) 17 Cal.app.ath 524, 535-535.) once again, however, beware of the situation where you detect a container during a lawful patdown, but do not believe or suspect that it contains a weapon. Since a pure detention does not give you the right to conduct any search at all, and since a lawful patdown only gives you the right to conduct a limited search for weapons, seizing and/or searching such a container will nozmally be illegal However, there is an exception (in addition to "consent"), namely, when you have probable cause to believe there is contraband in the container. Probable cause may exist by what you lawfully see, omell or touch, Rev, 3/05 California Peace Officers Legal Sourcebook Example SEARCH AND SEIZURE - PERSONS 2.228 in other words, it is legal for you to seize a container and/or to open’ (search) it as long as: (1) the surrounding circumstances are sufficient to provide probable cause (not just reasonable suspicion) that the container holds contraband, and (2) you obtained that probable cause lawfully during, and within the lawful Scope of, the detention or limited weapons search (Dickerson (1993) 113 S.Ct, 2130, 2137; Dibb (1995) 37 Cal.app.4th 632, 836.) Technically, the reason that it is legal to search (open) a container in this situation is because if you have probable cause to believe there is contraband inside the container, then you also have probable cause to arrest the detainee for possessing the contraband; and if you can legally arrest him, then you are entitled to conduct a full search of his person, including containers, incident to that custodial arrest--even though the arrest hasn't formally taken place yet! (Yaldez (1987) 196 Cal.App.3d 799.) During execution of a narcotics search warrant at an auto repair yard, an officer legally detained a man who had tried £9 flee. While patting him down, the officer felt a film canister which he knew was not a weapon, but which, in his experience, either contained drugs or was empty, since no photographic equipment was around. He retrieved it and opened it, looking for drugs. HELD: The officer acted illegally. A search for contraband, as opposed to weapons, may be carried out during @ detention only when probable cause to arrest already exists, even though the search may momentarily precede any arrest. A film canister, which admittedly might be empty, does not sufficiently "proclaim its contents” and therefore is not equivalent to a "heroin balloon, a paper bindle, or a marijuana- smelling brick-shaped package, which may be seized upon observation." "Rather, the canister is akin to a common product like a pill bottle, a pack of cigarettes, or a plastic bag which may not be seized merely because it may also be commonly used to store narcotics." Because the facts here did not provide the officer with probable cause to arrest, the patdown search was limited to weapons and could not include the interior of a pocket where the officer did not believe a weapon was located. (Valdez (1987) 196 Cal.App.34 799.) However, even a common container can constitute a suspicious circumstance, capable of contributing to the totality of the circumstances necessary for probable cause, depending on the total factual context in which the container is observed and the prior experience of the officer with containers of that type. Rev. 1/36 California Peace Officers Legal Sourcebook 2.22 SEARCH AND SEIZURE - PERSONS Exampli ‘The officer's prior experience with narcotics inside a key case, plus the observed conduct of the suspect (removing something from the wheel-well of a pickup truck, then engaging in an apparent hand- to-hand exchange, then replacing something in the wheel-well, all in a location well known for Grugs), gave the officer probable cause to arrest Limon for possessing drugs as of the moment the officer discovered a hide-a-key box in Limon's pocket, even though a hide-a-key is a "common" container. Therefore, he was then entitled to open (search) the key container incident to the custodial arrest, even though the arrest had not actually taken place yet. "An officer with probable cause to arrest can search incident to the arrest before making the arrest." (Limon (1993) 17 Cal.App.4th 524, 538.) Example: During a vehicle stop, the suspect tried to hide a paper bag which the officer feared might contain a weapon. He felt the bag from the outside to see if it contained a weapon, and felt what he believed, based on his experience, to be numerous quarter bags of heroin. He could lawfully open the bag and seize the contents. "No reasonable expectation of privacy attaches to containers whose contents are teadily discernible through use of some sense other than sight." (dilliams (D.C. Cir. 1987) 822 F.2d 1174.) Example: A suspect who was removing identification from his Jacket for an officer revealed a "bindle" which the officer recognized as a receptacle for drugs -- usually cocaine. The officer was entitled to seize it and open it because its manner of packaging, ogether with the suspect's efforts to conceal it, ‘announced its contents." (Courcy (1987) 739 P.24 98.) Example: buring a traffic stop, a "neatly folded squared piece of paper” fell from the driver's wallet to the ground. The experienced officer recognized it as a probable bindle of cocaine or heroin. Therefore it was proper to seize the bindle (Lilienthal (1978) 22 Cal.3d 91.) Rev. 1/96 California Peace Officers Legal Sourcebook Bxample Example Example Example: Example: SEARCH AND SEIZURE - PERSONS 2.226 A veteran police officer saw a "bundle" of tiny, empty, ¢ baggies in a man's clutch purse in a parked car under quite suspicious circumstances (four occupants had been ducking up and down, only one had any identification, they were miles away from their purported destination, they were in a high drug area of Sacramento in a car registered in Los Angeles, and there was a prescription bottle in the same purse). Under these circumstances, the officer had probable cause to search the purse and baggies. (Nonnette (1990) 221 Cal.app.34 659.) During a consensual encounter, the officer observed one-half inch of a "cylindrical rolled-up" plastic baggie sticking out of the pocket of a known narcotics user he was talking to. Based in part on the officer's substantial experience in the identification and packaging of controlled substances, the observation gave him probable cause to arrest. (Gonzales (1989) 216 Cal.App.3d 1185.) An officer seized "a large object about the size of @ baseball wrapped in aluminum’ from a detainee's pocket, thinking it contained narcotics. The Seizure was illegal, however, because there was no probable cause, i.e., nothing distinctive about the object, such as its size, shape or the manner in which it was being carried, which would enable a reasonable person to associate it with narcotics. (dole (2989) 212 Cal.App.3d 1200.) ‘The evidence at the suppression hearing did not support the search of a gun case under the "single- purpose container” exception because the flat, nondescript, rectangular black plastic case labeled "Bushmaster" was virtually identical to guitar cases and/or other containers that would hold lawful personal property. (Gust (9th Cir. 2005) 405 F.3d 797.) Abandonment Generally, evidence that a suspect discards before or during a lawful detention may be seized, may be examined, and is admissible in court. (Hodari D. (1991) 498 U.S. 621; Green (1994) 25 Cal.App.4th 1107, 1110.) officers drove by an intersection where drug activity had been reported and sav a male leaning into a vehicle that had stopped on the street. The officers pulled over, got out, and walked quickly towards the suspect, but said nothing. Upon seeing them approaching, he dropped a paper bag, turned, and started to run away, whereupon he was detained HELD: The bag of drugs was abandoned before the detention occurred. (Kemonte H. (1990) 223 cal.app.3d 1507.) Rev. 7/05 California Peace Officers Legal Sourcebook 2.224 Example Example: Example: SEARCH AND SEIZURE - PERSONS on the other hand, evidence that is discarded during an illegal detention is generally "tainted" and inadmissible. (Verin (1990) 220 Cal.app.3d 551.) If you are "chasing" a suspect at the time he discards the object, there is no problem in seizing the discarded object, The United states supreme Court has made clear no detention occurs until and unless the suspect actually is physically caught or stops on his own, i.e., submits to your authority. Therefore, anything he tosses away before that moment has been "abandoned" and is fair game When officers drove around the corner in their unmarked vehicle, a group of males who had been standing around a red car took off, and so did the car. One officer got out and ran around the block the other way and got within a few feet of the suspect, who was looking over his shoulder while running towards the officer, before he looked up and eaw him, whereupon he tossed away a rock of cocaine before being tackled. HELD: There was no "seizure" (detention) until the moment of the tackle. Therefore, the abandoned cocaine was not "tainted" by an illegal detention, was lawfully seized, and could be admitted into evidence. (dodari D. (1991) 499 U.S. 621; see also Chesternut (2988) 486 U.S. 567.) two officers, wearing police raid jackets, were patrolling a high narcotics area in an unmarked vehicle when they saw one individual (the suspect) approach another male. ‘The suspect then took his hand from his pocket, looked up, made momentary eye contact with the officers, and then took off running. One officer got out of the patrol car and followed (even "chased*) the suspect on foot, but said nothing and took no other action until after the suspect discarded some cocaine. HELD: There was no detention at the time of the abandonment, so the cocaine was admissible. (Nickleberry (1990) 221 Cal.App.34 63.) Several officers of a gang task force approached a large group of young people, who were wearing gang colore and in a public park, in order to monitor possible gang activity. One officer, per standard operating procedure, was carrying a 9nm semi- automatic rifle in the low ready Rev. 7/05

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