But intoxication alone does not preclude a valid waiver. See United States v. Figueroa-Serrano, 971 F.3d 806, 815 (8th Cir. 2020) (finding a valid Miranda waiver when the suspect, after using marijuana, did not appear affected by intoxication and told officers he understood his rights). Instead, the test is whether, considering the totality of the circumstances, the mental impairment “caused the defendant’s will to be overborne.” United States v. Jones, 842 F.3d 1077, 1083 (8th Cir. 2016).
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Held: A state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. Ferguson v. City of Charleston, 532 U.S. 67, 67–68, 121 S. Ct. 1281, 1283, 149 L. Ed. 2d 205 (2001)
While state hospital employees, like other citizens, may have a duty to provide the police with evidence *85 of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require.24 Cf. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Ferguson v. City of Charleston, 532 U.S. 67, 84–85, 121 S. Ct. 1281, 1292, 149 L. Ed. 2d 205 (2001)
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Passenger and vehicle searches have played a prominent role in Fourth Amendment jurisprudence. The Supreme Court has consistently held that probable cause is necessary to conduct a warrantless search of a vehicle. See Carroll v. United States, 267 U.S. 132, 160–62, 45 S.Ct. 280, 69 L.Ed. 543 (1925); California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).
In recent years, the Court has clarified that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” the search may extend to any area where evidence might be found. See Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1721, 173 L.Ed.2d 485 (2009) (citing United States v. Ross, 456 U.S. 798, 820–21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). In addition, when an arrest is made, a warrantless search is permitted “if the arrestee is within reaching distance of the passenger compartment … or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1723. But the Court has never sanctioned a vehicle search simply because there was probable cause to arrest a passenger or because a passenger could not provide identification. The Fourth Amendment requires more.
…
The focus of the arrest inquiry is different from that of the search inquiry. See Greene v. Reeves, 80 F.3d 1101, 1106 (6th Cir.1996). Officers have probable cause for an arrest if at the time of the arrest, “the facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent man in believing” that the defendant committed an offense. *1029 Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). Officers have probable cause for a search when “the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). “[T]here may be probable cause to search without probable cause to arrest, and vice-versa.” Id. (citing 2 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 3.1(b) at 9 (3d ed. 1996)).
241 F.3d 638, 647–48 (9th Cir.2000).
Both the Supreme Court and this court have highlighted this distinction. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (“The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.”); United States v. O’Connor, 658 F.2d 688, 693 n. 7 (9th Cir.1981) (“Probable cause to arrest concerns the guilt of the arrestee, whereas probable cause to search an item concerns the connection of the items sought with the crime and the present location of the items.”); Millender v. County of Los Angeles, 620 F.3d 1016, 1029 n. 6 (9th Cir.2010) (en banc).
Read the case here: United States v. Rodgers, 656 F.3d 1023, 1024 (9th Cir. 2011), https://cdn.ca9.uscourts.gov/datastore/opinions/2011/09/07/10-30254.pdf
Anton Vialtsin, Esq.
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One might think that someone who didn’t commit any crimes or even suspected of committing a crime would be afforded some protection under the Fourth Amendment, one that protects you against unreasonable searches and seizures. That is not so. “In situations where the State does not seek to seize ‘persons’ but only those ‘things’ which there is probable cause to believe are located on the place to be searched, there is no apparent basis in the language of the [Fourth] Amendment for also imposing the requirements for a valid arrest—probable cause to believe that the third party is implicated in the crime.” Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978) (holding that the Fourth Amendment does not prohibit the issuance of search warrants simply because the possessor of the property is not suspected of criminal involvement).
“Probable cause ‘is not a high bar,’ ” United States v. Sheckles, 996 F.3d 330, 337 (6th Cir. 2021) (quoting District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 586, 199 L.Ed.2d 453 (2018)), but neither is it a nonexistent one. “[T]o establish probable cause for a search, an affidavit must show a likelihood of two things: first, that the items sought are ‘seizable by virtue of being connected with criminal activity’; and second, ‘that the items will be found in the place to be searched.’ ” United States v. Abernathy, 843 F.3d 243, 249 (6th Cir. 2016) (alteration in original) (quoting United States v. Church, 823 F.3d 351, 355 (6th Cir. 2016)); see also Zurcher, 436 U.S. at 554, 98 S.Ct. 1970 (“[V]alid warrants may be issued to search any property … at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.” (original emphasis omitted)).
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Quincino Waide first encountered the Lexington police after a shed fire occurred on the property next to his. Although no one suspected Waide of having anything to do with the fire, the fire investigator noticed surveillance cameras attached to Waide’s duplex residence and asked Waide to turn over his digital video recorder (DVR) to see what it might reveal about the shed fire. When Waide declined, the investigator sought a warrant (the DVR warrant) to enter Waide’s apartment and retrieve the DVR.
The affidavit in support of the DVR warrant, however, lacked reliable evidence to establish probable cause to believe that the shed fire was due to arson or any other criminal activity. A state magistrate nevertheless issued the warrant. When the fire *332 investigator and five other officials with the Lexington Police and Fire Departments arrived at Waide’s duplex to execute the DVR warrant, their threatened entry and a pointed inquiry about whether Waide had drugs on the premises caused Waide to admit that his apartment contained a small amount of marijuana. This confession led to the issuance of two subsequent warrants (the narcotics warrants) to search both units of Waide’s duplex for narcotics. The searches yielded a firearm plus large quantities of drugs and money.
After the district court denied Waide’s multiple motions to suppress evidence, he entered into a conditional guilty plea to the offense of possessing cocaine and heroin with the intent to distribute the drugs, in violation of 21 U.S.C. § 841(a)(1), and to the offense of possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1).
Waide now appeals. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND with instructions to suppress the unlawfully collected evidence.
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The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ….” U.S. Const. amend. IV. Searches and seizures conducted without a warrant are “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Due to the diminished expectation of privacy in one’s vehicle as compared to on one’s person, the “automobile exception” allows an officer to search a vehicle without a warrant if the officer has probable cause to believe the vehicle contains contraband. Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
Lastly, as a general rule, “[e]vidence seized in violation of the Fourth Amendment, including any ‘fruit of the poisonous tree,’ may not be used in a criminal proceeding against the victim of the illegal search and seizure.” United States v. Cervantes, 703 F.3d 1135, 1143 (9th Cir. 2012) (quoting Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).
A. Marijuana in Vehicles Following Proposition 64
Proposition 64, passed in November 2016, decriminalized the possession of 28.5 grams of marijuana or less by persons age 21 and over in the state of California. See Cal. Health & Safety Code § 11357(b). Furthermore, Proposition 64 provided that “[c]annibis and cannabis products … deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” Id. § 11362.1(c) (emphasis added).
In the context of operating a motor vehicle, ….the statute in question in this case is Vehicle Code § 23222, which states that, “while driving a motor vehicle,” it is an infraction to possess “any receptacle containing any cannabis … which has been opened or has a seal broken, or loose cannabis flower not in a container ….” Vehicle Code § 23222(b)(1).
The legality of transporting marijuana in this exact type of container—that is, a plastic “tube” which “could be opened by squeezing the sides of the tube, which flexed the top open.” *836 People v. Shumake, 259 Cal. Rptr. 3d 405, 407 (Cal. App. Dep’t Super. Ct. 2019).
Federal law cannot provide an alternate basis for probable cause. To hold otherwise would allow officers to disregard entirely the California legislature’s directive that “no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” Id. § 11362.1(c). Indeed, it would lead to the paradoxical result of allowing state law enforcement officers to defy the state laws they are entrusted with upholding so that they might enforce federal laws which they cannot be compelled to enforce. See Printz v. United States, 521 U.S. 898, 918-19, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Moreover, practically speaking, to permit this end-run around California’s legalization scheme would grant state law enforcement officers carte blanche to disregard the Fourth Amendment rights of large numbers of California residents engaging in activity the state has deemed lawful. Without appellate authority compelling such a result, the undersigned will not sign off on this potentially sweeping erosion of constitutional rights.
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Responding to a report of suspicious activity in the area, a police officer unlawfully detained a bystander who had no apparent connection to the report. The officer ran a records search and learned that the bystander, Duvanh Anthony McWilliams, was on parole and subject to warrantless, suspicionless parole searches. The officer proceeded to search McWilliams and his vehicle, where the officer found an unloaded gun, ammunition, drugs, and drug paraphernalia.
As a general rule, evidence seized as a result of an unlawful search or seizure is inadmissible against the defendant in a subsequent prosecution. But the law permits use of the evidence when the causal connection “between the lawless conduct of the police and the discovery of the challenged evidence has `become so attenuated as to dissipate the taint.'” (Wong Sun v. United States (1963) 371 U.S. 471, 487.) Here, the Court of Appeal held that the officer’s discovery of McWilliams’s parole search condition sufficiently attenuated the connection between the unlawful detention and the contraband found in McWilliams’s vehicle. The Court of Appeal relied on cases allowing the admission of evidence seized incident to arrest on a valid warrant, where the warrant was discovered during an unlawful investigatory stop. (Utah v. Strieff (2016) 579 U.S. 232 (Strieff); People v. Brendlin (2008) 45 Cal.4th 262 (Brendlin).)
We now reverse. Unlike an arrest on an outstanding warrant, a parole search is not a ministerial act dictated by judicial mandate (Strieff, supra, 579 U.S. at p. 240), but a matter of discretion. We conclude the officer’s discretionary decision to conduct the parole search did not sufficiently attenuate the connection between the officer’s initial unlawful decision to detain McWilliams and the discovery of contraband. The evidence therefore was not admissible against him.
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Officers stopped defendant and appellant Vernon Evans after they observed him commit traffic violations. When Evans refused to comply with a command to exit his automobile, officers broke the vehicle’s window, “Tased” and pepper sprayed him, forcibly removed him from the car, and arrested him for interfering with a police investigation. A warrantless search of the vehicle at the scene revealed 11 empty sandwich baggies and $65 in cash, but no contraband.
A second warrantless search of the car at an impound yard revealed cocaine hidden in an air vent. After the trial court denied Evans’s motion to suppress the baggies, cash, and cocaine, Evans pleaded no contest to violating Health and Safety Code section 11352, subdivision (a).
Because the searches of his vehicle were not authorized under either the search incident to arrest exception to the warrant requirement (Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2d 485, 129 S.Ct. 1710] (Gant)) or the automobile exception, they violated the Fourth Amendment. Accordingly, we reverse.
Search Incident to Arrest: two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains `evidence relevant to the crime of arrest.’ [Citation.]” (Davis, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2425]; see Gant, supra, 556 U.S. at p. 343 [129 S.Ct. at p. 1719].)
Automobile Exception: Under the automobile exception, police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found. (Gant, supra, 556 U.S. at pp. 346-347 [129 S.Ct. at p. 1721]; Ross, supra, 456 U.S. at pp. 820-821; People v. Panah (2005) 35 Cal.4th 395, 469 [25 Cal.Rptr.3d 672, 107 P.3d 790]; People v. Superior Court (Nasmeh), supra, 151 Cal.App.4th at pp. 100-102.) Such a search “is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” (Ross, supra, at p. 809.) Ross “allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader.” (Gant, supra, at p. 347 [129 S.Ct. at p. 1721].) “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” (Ross, supra, at p. 825; see Gant, supra, at p. 347 [129 S.Ct. at p. 1721]; People v. Hunter (2005) 133 Cal.App.4th 371, 379-382 [34 Cal.Rptr.3d 818].) The automobile exception is rooted in the reduced expectation of privacy in a vehicle, the fact a vehicle is inherently mobile, and the historical distinctions between searches of automobiles and dwellings. (See California v. Carney (1985) 471 U.S. 386, 391-393 [85 L.Ed.2d 406, 105 S.Ct. 2066]; People v. Superior Court (Nasmeh), supra, 151 Cal.App.4th at p. 100.)
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The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A “search” involves governmental infringement on “an expectation of privacy that society is prepared to consider reasonable,” while a “seizure” of property involves “some meaningful interference [by the government] with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Fourth Amendment rights are personal rights that “may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). To establish standing to challenge governmental intrusions under the Fourth Amendment, an individual must demonstrate their reasonable expectation of privacy in a place searched, or meaningful interference with their possessory interest in property seized. See United States v. Singleton, 987 F.2d 1444, 1447 (9th Cir. 1993) (citing United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980)); Lavan v. City of Los Angeles, 693 F.3d 1022, 1027–29 (9th Cir. 2012).1 “Because warrantless searches or seizures of abandoned property do not violate the [F]fourth [A]mendment, persons who voluntarily abandon property lack standing to complain of its search or seizure.” *1117 United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir. 1986).
We begin with the bedrock principle that warrantless searches and seizures “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (quoting Thompson v. Louisiana, 469 U.S. 17, 19–20, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984)). One of these exceptions is the Terry stop, which permits an officer with reasonable suspicion that an individual is engaged in a crime to briefly detain the individual and make “ ‘reasonable inquiries’ aimed at confirming or dispelling [the officer’s] suspicions.” Dickerson, 508 U.S. at 373, 113 S.Ct. 2130 (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). If the officer has reasonable suspicion that the detained individual is “armed and presently dangerous,” the officer may conduct a frisk, a protective patdown search of the individual for weapons. Terry, 392 U.S. at 30, 88 S.Ct. 1868.
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“An individual asserting Fourth Amendment rights must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” United States v. Russell , 847 F.3d 616, 618 (8th Cir. 2017) (citation omitted). “The defendant moving to suppress bears the burden of proving he had a legitimate expectation of privacy that was violated by the challenged search.” Id. (citation omitted).
The main issue in this appeal is whether Sierra made an initial showing of a reasonable expectation of privacy in the Ford. He would have a privacy interest if he owned it, since “[o]ne who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it.” Byrd v. United States , ––– U.S. ––––, 138 S. Ct. 1518, 1527, 200 L.Ed.2d 805 (2018).
But Sierra didn’t prove he owned the Ford. He had no title, no bill of sale, and no registration. The only evidence he provided, proof of a tire change supposedly done as part of a trade for the Ford, was dated February 19. The search of the Ford took place on February 17. So even if the tire change was enough to prove that Sierra owned the Ford, that wouldn’t prove he owned it at the time of the search.
In a similar situation, the Fourth Circuit held that a defendant did not have standing to challenge a search of a car entrusted to a car hauler. United States v. Castellanos , 716 F.3d 828 (4th Cir. 2013). Despite the defendant claiming that he owned the car, he had no title, no bill of sale, no DMV registration, and no other indication that he was the owner. Id. at 834. His claim that he owned the car was “not substantiated in any way by the record.” Id. And even if he did eventually own the car, there was no evidence that “he did so prior to the search.” Id. The same goes for Sierra.
Even if he wasn’t the owner, Sierra might have shown a reasonable privacy interest in the Ford if he proved he was its sender or intended recipient. See United States v. Jacobsen , 683 F.2d 296, 298 n.2 (8th Cir. 1982) (noting “[t]he sender and intended recipient of a package clearly have ‘an adequate possessory or proprietary interest in the … object searched’ to give them standing to question the propriety of its search or seizure”), rev’d on other grounds , 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (citation omitted). But Sierra didn’t prove that either. The name on the bill of lading was Ana Garcia. Sierra never claimed that Ana Garcia was his pseudonym. See Castellanos , 716 F.3d at 834 (finding no standing because “Castellanos adduced no evidence at the suppression hearing demonstrating that the name ‘Wilmer Castenada’ was simply an alias”). In fact, according to the Presentence Investigation Report, officers later found out that Ana Garcia was Alatorre’s alias, not Sierra’s. Regardless, Sierra introduced no reliable evidence showing that he shipped the Ford or was the intended recipient.
Sierra suggests that because he picked up the Ford in Minneapolis, he must be its intended recipient. But that’s not enough. Sure, Sierra was clearly an intended recipient of the drugs in the Ford, but people don’t have a privacy interest in contraband. See Illinois v. Caballes , 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (“[A]ny interest in possessing contraband cannot be deemed legitimate ….”) (citation omitted).
As for the truck, simply receiving a package doesn’t make someone its intended recipient. See 18 U.S.C. § 1702 (criminalizing opening a letter addressed to someone else). Someone who steals a package off a front porch doesn’t transform into its intended recipient. Plus, Sierra wasn’t alone in picking up the Ford—Alatorre was there too. All told, Sierra just doesn’t provide enough evidence that he was the intended recipient of the Ford.
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In April 2021 the Springfield, Illinois police saw a Snapchat post of Jeremy Banks barbequing on his front porch with a gun sitting on the grill’s side shelf. Because Banks was a convicted felon, the officers needed nothing more to request a warrant to arrest him for unlawful gun possession. But they skipped this step and instead proceeded to Banks’s home, walked onto his porch, and, after a tussle, arrested him in his family room. The Fourth Amendment did not permit the shortcut, as the Supreme Court has held in no uncertain terms that a front porch—part of a home’s so-called curtilage—receives the same protection as the home itself. And no exception to the warrant requirement saves the officers’ actions here.
By its terms, the Fourth Amendment protected Jeremy Banks’s right “to be secure” in his “hous[e]” from “unreasonable searches and seizures.” U.S. Const. amend. IV. At the “very core” of that protection, the Supreme Court has emphasized, stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Indeed, when measuring the strength of the Fourth Amendment, “the home is first among equals.” Florida v. Jardines, 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). This principle finds deep roots in the common law backdrop against which the Fourth Amendment entered the U.S. Constitution in 1791. See, e.g., Semayne’s Case (1604) 77 Eng. Rep. 194, 195; 5 Co. Rep. 91 a, 91 b (KB) (“[T]he house of every one is to him as his castle and fortress, as well for his defen[s]e against injury and violence, as for his repose.”).
By 1984 the Supreme Court made plain that the Fourth Amendment provides equal protection to a home’s curtilage, the area immediately surrounding the home itself. See Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). “[P]rivacy expectations are most heightened” in the curtilage, because that area is “intimately linked to the home, both physically and psychologically.” California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). And the right to retreat into the home “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.” Jardines, 569 U.S. at 6, 133 S.Ct. 1409. Put even more directly, the curtilage is “part of the home itself for Fourth Amendment purposes.” Id. (quoting Oliver, 466 U.S. at 180, 104 S.Ct. 1735).
United States v. Banks, No. 22-1312, 2023 WL 1956605, at *2 (7th Cir. Feb. 13, 2023)
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