4th Amendment

The panel affirmed the district court’s denial of a motion to suppress evidence discovered following a traffic stop, and remanded for the district court to conform the written judgment to its oral pronouncement of sentence, in a case in which Xzavione Taylor entered a conditional guilty plea to being a felon in possession of a firearm.

The panel held that the officers did not unreasonably prolong the traffic stop. The panel wrote:
• An officer’s asking Taylor two questions about weapons early in the counter—once before the officer learned that Taylor was on federal supervision for being a felon in possession and once after—was a negligibly burdensome precaution that the officer could reasonably take in the name of safety.
• An officer did not unlawfully prolong the traffic stop when he asked Taylor to exit the vehicle.
• The officers’ subjective motivations are irrelevant because the Fourth Amendment’s concern with reasonableness allows certain actions to be taken in certain circumstances, whatever the subjective intent.
• A criminal history check and the officers’ other actions while Taylor was outside the car were within the lawful scope of the traffic stop.
• Even if, contrary to precedent, the frisk and criminal history check were beyond the original mission of the traffic stop, they were still permissible based on the officers’ reasonable suspicion of an independent offense: Taylor’s unlawful possession of a gun.

As to whether the officers violated the Fourth Amendment when they searched Taylor’s car, the panel held that the district court did not err in finding that Taylor unequivocally and specifically consented to a search of the car for firearms.

Taylor conceded that precedent forecloses his constitutional challenge to a risk-notification condition of supervised release. The panel remanded for the district court to conform the written judgment to its oral pronouncement of conditions concerning outpatient substance abuse treatment and vocational services programs.

Full case here: UNITED STATES V. TAYLOR, 60 F.4th 1233 (2023), https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/01/21-10377.pdf

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Most drivers do not know that they have a right to deny consent,and troopers are more than happy to exploit their lack of knowledge of their legal rights. Even though the law requires that consent be knowing, intelligent and voluntary, troopers don’t generally let such niceties stand in their way. For drivers who are not initially forthcoming with consent, troopers are trained to conclude the traffic stop, somehow signal that the driver is free to go, then immediately re-engage the driver in friendly, casual conversation to keep the driver at the scene and enable the trooper to develop reasonable suspicion or take another stab at getting consent . . .

The Court found that the Kansas Highway Patrol “is engaged in a pattern or practice of prolonging traffic stops by using the Kansas Two-Step to coerce drivers into answering questions when the troopers do not have reasonable suspicion and the drivers do not feel free to leave. This practice violates the Fourth Amendment by extending traffic stops without reasonable suspicion and without the knowing, intelligent and voluntary consent of the drivers.”

Full case here: BLAINE FRANKLIN SHAW et al., v. HERMAN JONES, in his official capacity as the ) Superintendent of the Kansas Highway Patrol, ) et al.,

https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2020cv1067-86

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At approximately 1:00 a.m. on October 14, 2020, officers from the New York City Police Department (NYPD) encountered Defendant Michael Hagood near a housing complex managed by the New York City Housing Authority (NYCHA) in the Bronx. Mr. Hagood was notably wearing a fanny pack slung across his chest while standing beside a double-parked vehicle. The officers observed that Mr. Hagood appeared visibly anxious upon spotting them, with one officer noticing an unusual protrusion in his fanny pack that resembled the shape of a handgun.

Prompted by these observations, the officers decided to stop and frisk Mr. Hagood, leading to the discovery of a loaded semi-automatic pistol in the fanny pack. Consequently, Mr. Hagood faced charges under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for possessing a firearm subsequent to a felony conviction. He subsequently sought to suppress the firearm as evidence, contending that the initial stop violated his Fourth Amendment rights due to the officers lacking reasonable suspicion of criminal activity.

However, the circumstances surrounding this case, which encompasses the officer’s expertise in retrieving firearms from fanny packs, Mr. Hagood’s unconventional method of wearing the fanny pack, his nervous demeanor upon encountering the officers, and the late hour within a high-crime neighborhood, collectively established reasonable suspicion.

Dissent:
The ordinary, reasonable person looking at this case would describe it as follows: Officer Migliaccio drove by Michael Hagood late one night from thirty feet away and had a two- or three-second window during which to observe Hagood. Migliaccio saw Hagood standing outside, calmly talking to two friends and wearing a fanny pack over his shoulder and across his chest. For whatever reason, Migliaccio had a hunch that Hagood was up to no good. Migliaccio acted on his hunch and decided to find a way to search Hagood. His hunch turned out to be right. Hagood was, indeed, a past felon improperly in possession of a gun. […D]espite the majority’s Herculean efforts, the record, at best, merely supports that Migliaccio had a hunch that turned out right.

Read the full case here: United States v. Hagood, No. 22-588 (2d Cir. 2023), https://law.justia.com/cases/federal/appellate-courts/ca2/22-588/22-588-2023-08-30.html

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In Steagald v. United States, 451 U.S. 204 (1981), the Supreme Court held that, in the absence of valid consent or exigent circumstances, warrantless searches are per se unreasonable and violate the Fourth Amendment. Id. at 211, 101 S.Ct. 1642. Here, the only warrant the police possessed at the time they entered Cruz’s home was an old warrant for Medina’s arrest for driving a car with a suspended license. In Steagald, the Supreme Court stated that an arrest warrant for a non-resident was insufficient to authorize a search of a third party’s home.Id. at 216, 101 S.Ct. 1642. Operating under the premise that the police did not have valid consent or exigent circumstances to search Cruz’s home, Medina contends that the search by the HPD violated the principle stated in Steagald.

What about girlfriend’s consent in this case?

Consent is not voluntary if it is merely the acquiescence to a claim of lawful authority. Bumper, 391 U.S. at 548-49. Moreover, “[w]here there is coercion, there cannot be consent.”Id. at 550. Consent must be voluntary and courts look to several factors in order to determine whether consent was given voluntarily or through coercion. United States v. Barnett, 989 F.2d 546, 554-55 (1st Cir. 1993). Those factors include age, education, experience, intelligence, knowledge of the right to withhold consent and evidence of coercive means or inherently coercive circumstances. United States v. Corain, 198 F.3d 306, 309 (1st Cir. 1999). No one factor is determinative because the Court must examine the totality of the circumstances surrounding the purported consent. Barnett, 989 F.2d at 554-55.

Read full case here: U.S. v. Medina, 451 F. Supp. 2d 262 (D. Mass. 2006), https://casetext.com/case/us-v-medina-10

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“[W]hen an officer has probable cause to believe evidence of a crime will be found specifically in the passenger compartment of a vehicle, and no other subsequent discovery or information provides further probable cause to believe the evidence will be found in the trunk, an officer’s search of the trunk exceeds the permissible scope of a warrantless search under the automobile exception.”

The Fourth Amendment’s guarantee of the right to be free from unreasonable searches and seizures is fundamental to our sense of liberty and justice. (U.S. Const., 4th Amend.) The general rule is that warrantless searches are unreasonable.(Katz v. United States (1967) 389U.S.347, 357.)Certain circumstances, however, create exceptions to the general ban on warrantless searches. (Ibid.) One such exception—the automobile exception—is the focus of this appeal.

“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) 456U.S.798, 824 (Ross).)In deciding whether a warrantless search was justified under the automobile exception, the facts are determinative. That is because probable cause exists “where 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(1996) 517U.S.690, 696.)

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 timeof 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 withseveraloffenses 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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Alexander Hillel Treisman appeals the district court’s denial of his motion to suppress evidence that police discovered while searching his van without a warrant. But warrantless searches of vehicles carried out as part of law enforcement’s community caretaking functions do not violate the Fourth Amendment if they are reasonable under the circumstances. And because the record here supports the district court’s conclusion that the officers acted reasonably in searching the van under their community caretaking functions, we affirm.

The Supreme Court first mentioned this concept in Cady v. Dombrowski, 413 U.S. 433 (1973). There, the Court explained,

Some [contacts between citizens and police involving automobiles] will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers [] frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions ….
Id. at 441. Elaborating, the Court described community caretaking functions as conduct “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. And it also clarified that the test for evaluating whether community caretaking searches violate the Fourth Amendment is reasonableness. Id. at 442. In other words, is the search reasonable given the totality of the circumstances?

Full case here: United States v. Treisman, No. 21-4687 (4th Cir. Jun. 23, 2023), https://casetext.com/case/united-states-v-treisman

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What began as a lawful traffic stop violated the Fourth Amendment’s shield against unreasonable seizures when the officers detoured from the traffic stop’s mission by conducting the dog sniff and inquiring into matters unrelated to the traffic violation and these detours prolonged the stop “‘beyond the time reasonably required to complete the mission’ of issuing a ticket for the [traffic] violation. [Citation.]” (Rodriguez, supra, 575 U.S. at pp. 350–351.)

___

The United States Supreme Court has identified tasks that are part of an officer’s mission during a stop for a traffic violation: “Beyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.’ [Citation.] Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. [Citations.]” (Rodriguez, supra, 575 U.S. at p. 355.) The temporary detention may also include “a criminal history check [citation], which is done by consulting an incar computer terminal or radioing dispatch. [Citations.]” (People v. Lopez (2019) 8 Cal.5th 353, 363, fn. 4.) “‘And although not specifically compelled by law, certain other steps customarily taken as matters of good police practice are no less intimately related to the citation process: for example, the officer will usually discuss the violation with the motorist and listen to any explanation the latter may wish to offer.’” (People v. Tully (2012) 54 Cal.4th 952, 981.) These tasks are included within the officer’s mission during a traffic stop because they “serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. [Citations.]” (Rodriguez, supra, 575 U.S. at p. 355.) An officer may also require a lawfully stopped driver to exit the vehicle for officer safety to complete his traffic stop mission. (Id. at p. 356.)

“On-scene investigation into other crimes, however, detours from [the traffic stop’s] mission. So too do safety precautions taken in order to facilitate such detours. [Citation.]” (Rodriguez, supra, 575 U.S. at p. 356.) While “[a]n officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop,” the officer “may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual. [Citation.]” (Id. at p. 355.)

Full case here: THE PEOPLE v. JOSEPH GYORGY, G061567 (Super. Ct. No. 18NF2747), (7/14/2023), https://www.courts.ca.gov/opinions/documents/G061567.PDF

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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)).

__________________________

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.

Read Full Case Here: United States v. Waide, 60 F.4th 327, 331–32 (6th Cir. 2023), https://caselaw.findlaw.com/us-6th-circuit/2188260.html

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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.

See full case here: https://casetext.com/case/united-states-v-talley-50 , United States v. Talley, 467 F. Supp. 3d 832, 837 (N.D. Cal. 2020)

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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.

See full case here: People v. McWilliams, Cal: Supreme Court 2023, https://scholar.google.com/scholar_case?case=1345807109121183826&hl=en&as_sdt=6&as_vis=1&oi=scholarr

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

The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!