4th Amendment

The Fifth Amendment’s privilege against selfincrimination generally applies only to those who “claim it.” Saechao, 418 F.3d at 1077 (quotation omitted). However, this general rule does not apply when an individual is “denied the free choice to admit, to deny, or to refuse to answer.” Id. This can occur when the government creates a situation where “an individual’s refusal to answer incriminating questions subjects him to a penalty.” Id. In a “penalty situation,” the Fifth Amendment becomes selfexecuting. Murphy, 465 U.S. at 435–36. In other words, “if the state, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation . . . the failure to assert the privilege would be excused, and the probationer’s answer would be deemed compelled and inadmissible in a criminal prosecution.” Id. at 435.

In the probationary [or parole] context, this means that although the state is permitted to require a probationer to “appear and discuss matters affecting his probationary status,” the probationer may not be required under threat of revocation of probation to respond to “questions put to [him], however relevant to his probationary status, [that] call for answers that would incriminate him in a pending or later criminal proceeding.”

Read the full case here: USA v. Watson, https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/23/24-1865.pdf

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Based in San Diego, CA
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While “knock and talks”—as defined by the United States Supreme Court—are
considered constitutional, “knock and talks”—as defined and executed by U.S. Immigration and Customs Enforcement (“ICE”)—are not. Considering the policies and practices governing how ICE conducts its “knock and talks,” the more accurate title for certain law enforcement operations would be “knock and arrests.” This Order serves to vacate those unlawful policies and practices.

Read more here: https://www.aclusocal.org/sites/default/files/kidd_msj_order.pdf

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Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

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“The automobile exception provides ‘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.’” (People v. McGee(2020) 53Cal.App.5th 796, 801, quoting People v. Evans(2011) 200Cal.App.4th 735, 753.) The scope of a warrantless search is “defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (United States v. Ross(1982) 456 U.S. 798, 824 (Ross).)

Here, the searching police officer received information via a radio broadcast from another officer that a juvenile on probation with a firearm restriction likely placed a firearm under the front passenger seat in defendant Hilario Leal, Jr.’s car before the defendant got into his car and drove away. Defendant’s car was under constant surveillance from the time of the alleged firearm placement until the searching officer conducted the search. When search the passenger compartment of defendant’s car yielded no firearm, the searching officer decided to search the trunk, where he discovered a firearm. Defendant was charged with several offenses and filed a motion to suppress the firearm; the trial court denied the motion. Defendant ultimately pled no contest to being a felon in possession of a firearm. The question presented is whether the search of the defendant’s trunk was justified under the automobile exception. We conclude it was not.

Read full case here: California v. Leal, https://law.justia.com/cases/california/court-of-appeal/2023/c096463.html

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What Officer Hill reasonably suspected, namely that Lopez–Soto had not affixed a registration sticker to his rear window, simply was not a violation of Baja California law. This cannot justify the stop under the Fourth Amendment. Nor is it possible to justify the stop objectively, as did the court in Sanders, with the facts available to Officer Hill when he made the stop: in his mistaken belief that Baja California law required the registration sticker to be visible from behind, Officer Hill did not check the windshield for the sticker. The information that he did gather—that there was no sticker on the rear or left windows—did not make it any less likely that Lopez–Soto was operating his car in conformity with the law.

We have no doubt that Officer Hill held his mistaken view of the law in good faith, but there is no good-faith exception to the exclusionary rule for police who do not act in accordance with governing law. See United States v. Gantt, 194 F.3d 987, 1006 (9th Cir.1999). To create an exception here would defeat the purpose of the exclusionary rule, for it would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey.

Read the full case here: United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000), https://law.justia.com/cases/federal/appellate-courts/F3/205/1101/559308/

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The government argues that we should credit Jankowski’s testimony because of his nineteen years of experience as a police officer and thousands of hours of “stash house” surveillance. But while courts analyze the facts leading to an investigatory stop in light of a trained officer’s experience, these facts must be “more than the mere subjective impressions of a particular officer.” Hernandez-Alvarado, 891 F.2d at 1416. Reasonable suspicion must be based on more than an officer’s “inchoate and unparticularized suspicion or `hunch.’ ” Terry v. Ohio, 392 U.S. 1, 27 (1968).

Here, Jankowski testified that the dropping of marijuana packages -onto what surface he did not specify -made “a flat-sounding kind of thump” that, to him was “pretty” distinctive “at times.” He could not describe the sound in any more detail, and he did not explain how it differed from thumps made by other kinds of packages.

Marijuana has a distinctive appearance, taste, and odor, and perhaps even a feel, but it does not have a distinctive sound. This is true regardless of how it is packaged.

A hunch may provide the basis for solid police work; it may trigger an investigation that uncovers facts that establish reasonable suspicion, probable cause, or even grounds for a conviction. A hunch, however, is not a substitute for the necessary specific, articulable facts required to justify a Fourth Amendment intrusion.

Because the investigatory stop of Thomas violated the Fourth Amendment, the district court was required to suppress the evidence that resulted from the stop as the fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 484-85 (1963). This evidence includes the marijuana, the shotgun, and Thomas’s incriminating statements. It also includes the packages of marijuana found in the bathroom adjoining the garage at the residence under surveillance. As the district court found, ” [t]he evidence obtained in the Thomas stop led Officers back to [the house at ] 5825 East 23rd.” Because there is at least a reasonable possibility that the evidence obtained as a result of the unlawful stop contributed to Thomas’s convictions, we reverse those convictions and remand for further proceedings.

Read the full case here: United States of America v. Andrew Charles Thomas, 211 F.3d 1186 (9th Cir. 2000), https://law.justia.com/cases/federal/appellate-courts/F3/211/1186/582645/

Anton Vialtsin, Esq.
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On November 12, 1999, at approximately 2:05 a.m., Sergeant Thomas Carmichael observed a blue Honda traveling at 70 m.p.h. northbound in the right lane on Interstate 15. Carmichael first observed the Honda from his patrol car, which was positioned 75 yards behind it. He observed the car drift onto the solid white fog line on the far side of the right lane and watched the car’s wheels travel along the fog line for approximately ten seconds. The Honda then drifted to the left side of the right lane, signaled a lane change, and moved into the left lane. Carmichael next observed the car drift to the left side of the left lane where its left wheels traveled along the solid yellow line for approximately ten seconds. The car then returned to the center of the left lane, signaled a lane change, and moved into the right lane. Carmichael pulled the car over for possible violations of California Vehicle Code § 21658(a) (lane straddling) and California Vehicle Code § 23152(a) (driving under the influence).

Appellant Efrain Estrada-Nava (“Estrada-Nava”) was the driver of the car and appellant Eric Colin (“Colin”) was his passenger. When Carmichael advised Estrada-Nava of the reasons for stopping him and asked for his license and registration, he noticed that both Estrada-Nava and Colin were nervous and shaking. He also noticed that the glove compartment contained a bottle of air freshener and a radar detector, that there were only three keys on Estrada-Nava’s key ring, and that neither Estrada-Nava nor Colin owned the Honda. Suspecting that the car might have been stolen, Carmichael separately questioned Estrada-Nava and Colin about the ownership of the vehicle. On the basis of their slightly conflicting stories, their nervous appearances, and his own training and experience, Carmichael concluded they might be involved in drug trafficking. Estrada-Nava and Colin separately consented to a search of the Honda, which revealed marijuana and methamphetamine.3

Colin filed a motion to suppress the narcotics evidence, in which Estrada-Nava joined, arguing that Carmichael illegally stopped the Honda and illegally detained the two of them thereafter. After an evidentiary hearing, the district court denied the motion, concluding that Carmichael had reasonable suspicion to stop the car and that the evidence therefore was legally obtained. Estrada-Nava and Colin appealed.

Read the full case here: United States of America v. Eric Colin, 314 F.3d 439 (9th Cir. 2002), https://law.justia.com/cases/federal/appellate-courts/F3/314/439/531629/

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
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Few statements in the law are as often repeated: “[A]n investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.” ( In re Tony C. (1978) 21 Cal.3d 888, 893 [ 148 Cal.Rptr. 366, 582 P.2d 957].) The Fourth Amendment’s protection against unreasonable searches and seizures dictates that traffic stops must be supported by articulable facts giving rise to a reasonable suspicion that the driver or a passenger has violated the Vehicle Code or some other law. ( People v. Miranda (1993) 17 Cal.App.4th 917, 926 [ 21 Cal.Rptr.2d 785].) In this case, the police officer who conducted the traffic stop did so on a mere hunch that the defendant and his passenger were involved in criminal activity. In other words, the facts known to the officer were insufficient to support the objectively reasonable suspicion necessary to justify a detention under the Fourth Amendment.

Read the full case here: PEOPLE v. DURAZO, 124 Cal.App.4th 728 (2004), https://www.casemine.com/judgement/us/59147616add7b049343bbde7

Anton Vialtsin, Esq.
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The panel reversed the district court’s order denying the defendant’s motion to suppress evidence obtained from warrantless searches of his cell phone by Customs and Border Protection officials, and vacated his conviction for importing cocaine.

Applying United States v. Cotterman, 709 F.3d 952 (9thCir. 2013) (en banc), the panel held that manual cell phone searches maybe conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The panel clarified Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband. The panel further concluded that cell phone searches at the border, whether manual or forensic, must be limited in scope to whether the phone contains digital contraband; and that a broader search for evidence of a crime cannot be justified by the purposes of the border search exception to the Fourth Amendment warrant requirement. The panel held that to the extent that a Border Patrol agent’s search of the defendant’s phone – which included the recording of phone numbers and text messages for further processing– went beyond a verification that the phone lacked digital contraband, the search exceeded the proper scope of aborder search and was unreasonable as a border search under the Fourth Amendment.

The panel held that although the agents had reason to suspect the defendant’s phone would contain evidence leading to additional drugs, the record does not give rise to an objectively reasonable suspicion that the digital data in the phone contained contraband, and the border search exception therefore did not authorize the agents to conduct a warrantless forensic search of the defendant’s phone. The panel held that the good faith exception to the exclusionary rule does not apply because the border officials did not rely on binding appellate precedent specifically authorizing the cell phone searches at issue here.

Read the full case here: United States v. Cano, 934 F.3d 1002 (2019), https://law.justia.com/cases/federal/appellate-courts/ca9/17-50151/17-50151-2019-08-16.html

Anton Vialtsin, Esq.
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