Seizures

Types of Police Contacts

• Consensual encounter
  • No justification required.
  • “Those police-individual interactions which result in no restraining of an individual’s liberty whatsoever — i.e., no ‘seizure,’ however minimal — and which may properly be initiated by police officers even if they lack any ‘objective justification.’” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)
• Detentions
  • Reasonable suspicion.
  • “seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police ‘if there is an articulable suspicion that a person has committed or is about to commit a crime.’” Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.
  • A person is detained when, “taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that [she] was not at liberty to ignore the police presence and go about [her] business.’” Florida v. Bostick (1991) 501 U.S. 429, 437.
• Arrest
  • Probable Cause.
  • “there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime.” Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.
  • “To determine whether officers had probable cause for an arrest, we examine the events leading up to the arrest and decide whether these historical facts, viewed from the standpoint of an objectively reasonable officer, amount to probable cause. It depends on the totality of the circumstances. As the name implies, probable cause deals with probabilities. It requires only a probability or substantial chance of criminal activity, not an actual showing of a crime. Probable cause is not a high bar.” (People v. Diaz (2023) 97 Cal.App.5th 1172, 1178;  District of Columbia v. Wesby (2018) 583 U.S. 48, 56-57.)

Detention: Justification

• Standard: Reasonable Suspicion
• Traffic violation: “a seizure for a traffic violation justifies a police investigation of that violation.” (Rodriguez v. U.S. (2015) 575 U.S. 348, 354.)
  • An officer with a reasonable suspicion that a motorist has violated the Vehicle Code may stop the vehicle for a brief investigation. (People v. Miranda (1993) 17 Cal.App.4th 917, 926.)
  • A traffic stop begins once the vehicle is pulled over for investigation of the traffic violation. (People v. McDaniel (2021) 12 Cal.5th 97, 130.)
  • A traffic stop constitutes a seizure within the meaning of the Fourth Amendment. (Rodriguez v. U.S. (2015) 575 U.S. 348, 355.)
  • Fail to Use Turn Signal. Facts indicating other cars could be affected by a D’s failure to use a turn signal are required to establish officer had a reasonable suspicion D violated the Vehicle Code. (People v. McCowan (Jan. 13, 2026) A167545; VC 22107, 22108; People v. Logsdon (2008) 164 Cal.App.4th 741, 744 [“a signal is only a prerequisite to a lane change if another motorist could be affected”].)
  • Ordering D to Exit Vehicle: “once a vehicle has been lawfully detained for a traffic violation, a police officer may order the driver to exit the vehicle without any articulable justification.” (People v. Hoyos (2007) 41 Cal.4th 872, 893.)
• An investigative detention is legally justified “when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)
• The reasonable suspicion standard is objective in nature, “based on the facts and circumstances known to the officer but without regard to the officer’s subjective state of mind.” (People v. Flores (2019) 38 Cal.App.5th 617, 626.)
• Flight
  • Headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” (People v. Flores (2021) 60 Cal.App.5th 978, 980; Illinois v. Wardlow (2000) 528 U.S. 119, 124.)
• Furtive Conduct
  • “[N]ervous and evasive behavior is a pertinent factor in determining whether suspicion is reasonable.” (People v. Flores (2021) 60 Cal.App.5th 978, 990.)
  • “Examples of relevant behavior include expressions of shock upon seeing an officer, ducking and hiding, headlong flight, a sudden change in direction, walking quickly away while looking back at the officer, and failing to acknowledge the officer’s attempt to engage the suspect.” (People v. Flores (2024) 15 Cal.5th 1032.)
  • Insufficient without more.
    • “[T]he inference that ‘nervousness’ existed and was based on defendant’s desire to avoid contact with Agent Hudson is pure speculation” (People v. Valenzuela (1994) 28 Cal.App.4th 817, 828.)
    • Known drug trafficking corridor + vehicle recently crossed US-Mexico border + D slowed vehicle and moved away when unmarked car pulled alongside –> NOT RS. (People v. Mendoza (2020) 44 Cal.App.5th 1044.)
    • D’s disinclination to engage with officers, ducking out of sight, bending with his hands by his shoe, and not acknowledging officer’s presence + high crime area –> NOT RS. (People v. Flores (2024) 15 Cal.5th 1032.)
• High Crime Area
  • Presence in an area of expected criminal activity is a relevant consideration. (Illinois v. Wardlow (2000) 528 U.S. 119, 124.)
  • It is insufficient, standing alone, to support RS. (People v. Casares (2016) 62 Cal.4th 808, 838.)
• Anonymous Tip
  • RS necessary to justify a stop “is dependent upon both the content of the information possessed by the police and its degree of reliability.” (In re Edgerrin J. (2020) 57 Cal.App.5th 752, 763.)
  • “If a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion that would be required if the tip were more reliable.” (Alabama v. White (1990) 496 U.S. 325, 330.)
  • Case Law
    • Woman driving from particular apartment building to particular motel + type of vehicle + unique attribute of vehicle + transporting cocaine –> RS once officers corroborated innocent details. (Alabama v. White (1990) 496 U.S. 325, 331-332.)
    • 911 caller tip she was run off highway + identified make/model & LP of vehicle + contemporaneous report + used 911 emergency system –> RS (Navarette v. California (2014) 572 U.S. 393, 399-400.)
    • Tip someone is “acting shady” –> NOT RS. (In re Edgerrin J. (2020) 57 Cal.App.5th 752, 765.)

Detention: When Detained

• A person is seized within the meaning of the Fourth Amendment when an officer, using a show of authority or physical force, intentionally restrains the person’s freedom to move. (Brendlin v. California (2007) 551 U.S. 249, 254.)
• Show of authority: When law enforcement officers make some show of authority toward an individual, they have detained the person if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (People v. Brown (2015) 61 Cal.4th 968, 974.)
  • Lights: “Though there is no bright-line rule that activating lights always constitutes a detention, the ‘Supreme Court has long recognized that activating sirens or flashing lights can amount to a show of authority.’” (In re Edgerrin J. (2020) 57 Cal.App.5th 752, 760; People v. Brown (2015) 61 Cal.4th 968, 978.)
    • Stop behind parked car + activate emergency lights -> Detention. (People v. Bailey (1985) 176 Cal.App.3d 402, 405-406.)
  • Spotlight: use of spotlight alone is not enough to effect detention. (People v. Kidd (2019) 36 Cal.App.5th 12, 21.)
    • Spotlight + exit vehicle & ask D to approach = detention. (People v. Roth (1990) 219 Cal.App.3d 211, 215; People v. Garry (2007) 156 Cal.App.4th 1100.)
    • Good overview of spotlight analysis (but review granted so not citable): (People v. Kasrawi (2021) 65 Cal.App.5th 751.)
• Actual Submission required: A seizure may occur by a show of authority alone without the use of physical force, but there is no seizure without actual submission. (Brendlin v. California (2007) 551 U.S. 249, 254.)
  • Passive Acquiescence: where submission to show of authority takes the form of passive acquiescence, courts simply consider whether, “in view of all of the circumstances surrounding the incident, a RP would have believed that he was not free to leave or otherwise terminate the encounter.” (People v. Brown (2015) 61 Cal.4th 968, 977.)

Detention: Unduly Prolonged

• Traffic Stop. Because the traffic violation is the purpose of the stop, the stop “may last no longer than is necessary to effectuate th[a]t purpose.” (Rodriguez v. U.S. (2015) 575 U.S. 348, 354.)
  • “The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’–to address the traffic violation that warranted the stop, and attend to related safety concerns.” (Rodriguez v. U.S. (2015) 575 U.S. 348, 354.)
• No Set Time Limit. “There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly.” (People v. Russell (2000) 81 Cal.App.4th 96, 102.)
• “An officer’s inquiries into matters unrelated to the justification for the traffic stop … do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” (Arizona v. Johnson (2009) 555 U.S. 323, 333.)
• When T/S Starts. A traffic stop begins for purposes of the Fourth Amendment when an officer pulls a vehicle over for a traffic infraction. (People v. McDaniel (2021) 12 Cal.5th 97, 129-130.)
• Case Law
  • Stop unduly prolonged where narcotics dog alerted 7-8 minutes after completion of investigation for infraction. (Rodriguez v. U.S. (2015) 575 U.S. 348, 354.)
  • Holding ten-minute delay unlawful where all that was reasonably necessary for a T/S was for police to examine D’s license and registration, explain the violation, and then issue either a citation or a warning. (People v. McGaughran (1979) 25 Cal.3d 577, 587.)
  • Bad case for unduly prolonged. (People v. Ayon (2022) 80 Cal.App.5th 926.)
  • Unduly prolonged where basis for stop was temporary vehicle registration (which was properly displayed), delay was for record check which revealed passenger on probation. (People v. Suggs (2023) 93 Cal.App.5th 1360.)
  • Not unduly prolonged where pretext stop for tinted windshield, gang detective recognizes gang-member D, knows likely armed, calls for backup, 7 minutes from time of stop to pat-down search. (People v. Esparza (2023) 95 Cal.App.5th 1084.)

Seizures: DUI Checkpoints

• In General. Sobriety checkpoints may be operated without violating the Fourth Amendment or Art. I, sec. 13, of the state Constitution. (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1325.)
• Brown Balancing Test. To determine whether a detention or seizure is justified, Court balances the public interest served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. (People v. Banks (1993) 6 Cal.4th 926, 936.) Federal constitutional principles require a showing of either the officer’s reasonable suspicion that a crime has occurred or is occurring or, as an alternative, that the seizure is ‘carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.’” (People v. Banks (1993) 6 Cal.4th 926, 936 citing Brown v. Texas (1979) 443 U.S. 47, 51.)
  • DUI checkpoint in Ingersoll satisfied Brown Test b/c: (1) deterring drunk driving and identifying and removing drunk drivers from the roadways undeniably serves a highly important governmental interest; and (2) DUI checkpoints advance this interest. (Ingersoll at pp. 1338-1341.)
  • Third Prong of Brown reformulated as: “the intrusiveness on individual liberties engendered by the sobriety checkpoints.”
• Ingersoll Factors. To determine whether third prong of Brown test is satisfied (whether the intrusiveness on individual liberties engendered be the sobriety checkpoints passes constitutional muster) the Ingersoll Court developed the following 8 factors: (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1341-1347.)
  • (1) Decision Making at Supervisory Level. “Whether the decision to establish a sobriety checkpoint, the selection of the site, and the procedure for the operation of the checkpoint are made and established by supervisory law enforcement personnel.”
  • (2) Neutral Formula. “Whether motorists are stopped according to a neutral formula, such as every third, fifth or tenth driver.”
    • Officer gather “five cars at a time” method, at times gathering cars in groups of less than five depending on traffic conditions, held both methods constituted ‘neutral formulas.’ (People v. Alvarado (2011) 193 Cal.App.4th Supp. 13, 18.)
  • (3) Maintenance of Safety Condition. “Whether adequate safety precautions are taken, such as proper lighting, warning signs, and signals, and whether clearly identifiable official vehicles and personnel are used”
  • (4) Reasonable Location of Checkpoint. “Whether the location of the checkpoint was determined by a policymaking official, and was reasonable, i.e., on a road having a high incidence of alcohol-related accidents or arrests”
  • (5) Reasonable Time & Duration of Checkpoint. “Whether the time the checkpoint was conducted and its duration reflect “good judgment” on the part of law enforcement officials.”
    • Most checkpoints approved by courts have been operated in the late evening and early morning hours. (Ingersoll at p. 1435.)
  • (6) Indicia of the Official Nature of the Roadblock. “Whether the checkpoint exhibits sufficient indicia of its official nature (to reassure motorists of the authorized nature of the stop)”
  • (7) Length and Nature of Detention. “Whether the average length and nature of the detention is minimized”
    • Factor satisfied where 28 seconds for average screening, six minutes for those given FSTs. (Ingersoll at p. 1327.)
  • (8) Advance Publicity Regarding Each Checkpoint. “Whether the checkpoint is preceded by publicity.”
    • Publication of an article advising of the checkpoint in the morning edition of the newspaper with the largest countywide circulation prior to the commence of its operation at 6PM the same day, satisfied this factor. (People v. Squire (1993) 15 Cal.App.4th 775, 781.)
• Absence of Ingersoll factor not dispositive. (Roelfsema v. Department of Motor Vehicles (1995) 41 Cal.App.4th 871, 877.)

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Searches

Standing

• D cannot challenge introduction of evidence obtained in an allegedly unlawful search unless that individual had a reasonable expectation of privacy in the object seized or the place searched. (Rakas v. Illinois (1978) 439 U.S. 128, 143.)
• Defendant bears the burden of establishing a legitimate expectation of privacy in the area searched or the object seized. (People v. Jenkins (2000) 22 Cal.4th 900, 972.)
  • D’s Burden of Proof is preponderance of the evidence. (U.S. v. Matlock (1974) 415 U.S. 164, 178.)
• Reasonable expectation of privacy is defined as (1) a subjective expectation of privacy in the object of the challenged search which h(2) society would define as a reasonable expectation. (California v. Ciraolo (1986) 476 U.S. 207, 211.)
  • Relevant Factors (People v. Hernandez (1988) 199 Cal.App.3d 1182, 1189.)
    • Whether D had a possessory interest in the thing seized or place searched
    • Whether D has a right to exclude others from that place
    • Whether D exhibited a subjective expectation that it would remain free from governmental invasion
    • Whether D took normal precautions to maintain his privacy
    • Whether D was legitimately on the premises
  • The mere fact a person is legitimately present in a vehicle or on premises that are searched, without more, is insufficient to establish a reasonable expectation of privacy (Rakas v. Illinois (1978) 439 U.S. 128, 143.)

Plain View Search

• Observations made in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense. (Lorenzana v. Superior Court of LA County (1973) 9 Cal.3d 626, 634.)
• Observations through an aperture provided by D’s arrangement of window covering was not improper. (People v. Berutko (1969) 71 Cal.2d 84, 93.)

Pat Search

• Reasonable suspicion D armed & dangerous. (Terry v. Ohio (1968) 392 U.S. 1.)
• Reasonable search for weapons permitted where officer has reason to believe he is dealing with an armed and dangerous individual.” (King v. State of California (2015) 242 Cal.App.4th 265, 283.)
• Officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. (People v. Dickey (1994) 21 Cal.App.4th 952, 955-956.)
• Relevant Factors:
  • Time and location of encounter. (In re H.H. (2009) 174 Ca.App.4th 653, 660 [but insufficient on its own].)
  • Nervous, evasive behavior. (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 885.)
  • High Crime Area. Standing alone, insufficient. (People v. Souza (1994) 9 Cal.4th 224, 240-241.)
  • Presence in high crime area at night. Insufficient on its own to support reasonable suspicion. (People v. Medina (2003) 110 Cal.App.4th 171, 177-178.)
  • High crime area + at night + fled from police. Sufficient. (Illinois v. Wardlow (2000) 528 U.S. 119, 124-125.)
  • Area involved in increased gang activity. (People v. King (1989) 216 Cal.App.3d 1237, 1241.)
  • D’s history of weapons. Held, insufficient to support reasonable suspicion. (People v. Pantoja (2022) 77 Cal.App.5th 483, 490-491.)
  • Mere gang affiliation on its own. Insufficient to support reasonable suspicion, without more. (People v. Hester (2004) 119 Cal.App.4th 376, 392.)
  • D ID’d gang member + in contested gang territory + both gangs known for violent activity + ghost gun found on other vehicle occupant. Sufficient to support reasonable suspicion to pat search D. (People v. Esparza (2023) 95 Cal.App.5th 1084.)
• May remove needle from pocket. (People v. Autry (1991) 232 Cal.App.3d 365.)

Exigent Circumstances

• Warrantless search is objectively reasonable where an exigent circumstance makes the needs of law enforcement so compelling. (Kentucky v. King (2011) 563 U.S. 452, 460.)
• “Exigent circumstances” describes “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Panah (2005) 35 Cal.4th 395, 465.)
  • Emergency Aid Exception
    • Reasonably necessary to render emergency aid irrespective of a crime
    • “Officers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception.” (Michigan v. Fisher (2009) 558 U.S. 45.)
    • “[T]he test … [is] whether there was ‘an objectively reasonable basis for believing’ that medical assistance was needed, or persons were in danger…” (Michigan v. Fisher (2009) 558 U.S. 45, 49.)
    • Warrantless entry proper where officers had information a person living inside apartment “was sickly” and heard “several moans or groans” after knocking on door.” (People v. Roberts (1956) 47 Cal.2d 374, 376.)
  • Hot pursuit
    • Misdemeanor Offense. Flight of suspected misdemeanant does not always justify a warrantless entry into the home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency [justifying entry]. (Lange v. California (2021) 141 S. Ct. 2011, 2024.)
  • Imminent destruction of evidence
  • Crime in progress
    • Burglary in progress may constitute an exigent circumstance. (People v. Lujano (2014) 229 Cal.App.4th 175, 183.)
• Burden of Proof: prosecution bears burden to show exigent circumstances exist. (People v. Smith (2020) 46 Cal.App.5th 375, 385-386.)
• End of Exigency: limited by the principle that the justification for searching based on exigent circumstances “ends when the emergency passes.” (People v. Duncan (1986) 42 Cal.3d 91, 99.)
  • Persistent odor of unspecified smoke does NOT allow warrantless search of a cabinet within a shed in backyard. (People v. Nunes (2021) 64 Cal.App.5th 1, 7.)
• Exigent Circumstances – Seizure. seizure of dashboard camera where PC to believe crime of reckless driving had been committed & camera could easily be broken, destroying evidence. (People v. Tran (2019) 42 Cal.App.5th 1.)

Search-Incident-to-Arrest (Non-Vehicular)

• Standard. When an officer has probable cause to arrest a person, the warrantless search becomes justified as a search incident to arrest. (People v. Avila (1997) 58 Cal.App.4th 1069, 1075.)
  • A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment…a search incident to arrest requires no additional justification. (United States v. Robinson (1973) 414 U.S. 218, 224; People v. Macabeo (2016) 1 Cal.5th 1206, 1213.)
• Search before arrest? Permissible. (People v. Cockrell (1965) 63 Cal.2d 659, 666.)
  • When a custodial arrest is made, and that arrest is supported by independent probable cause, a search incident to that custodial arrest may be permitted, even though the formalities of the arrest follow the search. (People v. Macabeo (2016) 1 Cal.5th 1206, 1213.)
• No booking? Permissible. The right to search attaches once the person is taken into custody–it does not matter that he or she will be released without booking. (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1228.)
• Scope of Search. SIA extends to any item immediately associated with the person of the arrestee or otherwise within the immediate control of the person at the time of arrest. (United States v. Chadwick (1977) 433 U.S. 1, 14.)
  • Immediate Control: area from within which he might gain possession of a weapon or destructible evidence. (People v. Johnson (2018) 21 Cal.App.5th 1026, 1033.)
  • Purse? Permissible. A search of a gentleman’s coin person incident to arrest is proper under this exception. (People v. Brocks (1981) 124 Cal.App.3d 959, 963-964.)
  • Search of Entire House goes too far. (Chimel v. California (1969) 395 U.S. 752, 768.)

Consent

• Consent must be freely and voluntarily rendered and not be the product of police coercion. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227.)
• Voluntariness: Totality of the Circumstances.
  • Whether a particular consent to search is voluntary depends on the totality of the circumstances; no single factor is dispositive of his factually intensive inquiry. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1578.)
  • Handcuffs not determinative. (People v. Monterroso (2004) 34 Cal.4th 743, 758.)
  • Gunpoint. Taking a defendant into custody at gunpoint was not so overbearing as to invalidate the subsequent consent. (People v. Ratliff (1986) 41 Cal.3d 675, 686.)
• Objective Standard. Ds subjective state of mind or intent is not determinative of the question of consent to search. (People v. Wheeler (1974) 43 Cal.App.3d 898, 903.)
• Factors which may be relevant to whether D’s consent to search was voluntarily given: (1) whether the consenting person was in custody and whether Miranda warnings were given; (2) whether the officer(s) had weapons drawn; (3) whether the officer(s) informed the person of the right to refuse consent; (4) whether the person was told a search warrant could be obtained; (5) whether consent was obtained while the person was confronted by many officers; (6) whether the consenting person experienced a significant interruption of his liberty; and (7) whether the officer(s) used deceptive practices to obtain consent. (Boitez v. Superior Court (2023) 96 Cal.App.5th 1213.)
• Coercion. Coercion is not limited to physical abuse; it may involve more subtle forms of psychological persuasion including deception or communication of false information. (People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 20.)
• Officer’s false promise of leniency as to towing D’s mother’s car is material & inextricable part of agreement inducing D’s consent to search, and thus consent not voluntary. (Boitez v. Superior Court (2023) 96 Cal.App.5th 1213.)

Community Caretaking

• Insufficient on its own to justify warrantless search.
  • “The community caretaking exception asserted in the absence of exigency is not one of the carefully delineated exceptions to the residential warrant requirement recognized by the US Supreme Court.” (People v. Ovieda (2019) 7 Cal.5th 1034, 1053.)
• No Good Faith Reliance on People v. Ray (1999) 21 Cal.4th 464, because decision was a plurality opinion. (Texas v. Brown (1983) 460 U.S. 730, 737.)

Identification Search

• Insufficient on its own to justify warrantless search. Fourth Amendment does not contain an exception to the warrant requirement for searches to locate a driver’s identification following a traffic stop. (People v. Lopez (2019) 8 Cal.5th 353, 549.)

Probation/Parole Search

• Requirements (People v. Schmitz (2012) 55 Cal.4th 909, 916.)
  • (1) parolee’s status must be known to the officer
  • (2) search may not be “arbitrary, capricious, or harassing.”
• Knowledge Required: a search may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted. (People v. Sanders (2003) 31 Cal.4th 318, 335.)
• House Search: permitted where officer is aware of suspect’s search condition. (United States v. Knights (2001) 534 U.S. 112.)
• Parolee v. Probationer: parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment. (Samson v. California (2006) 547 U.S. 843, 850.)
• Knowledge D is Parolee = Knowledge of Search Condition. Because such terms are mandated as a term of every parolee’s release, an officer’s knowledge of a parolee’s status is equivalent to knowledge of the applicable search condition. (People v. Middleton (2005) 131 Cal.App.4th 732, 739-740.)
• Arbitrary Search. A parole search may still violate the Fourth Amendment if it is “arbitrary, capricious, or harassing.” (People v. Reyes (1998) 19 Cal.4th 743, 752.)
• Vehicle Search
  • Parolee-Passenger. A permissible search based on a passenger’s parole status is limited to “those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity.” (People v. Schmitz (2012) 55 Cal.4th 909, 926.)
    • Glove Box. Held, it is not objectively reasonable to believe a back seat passenger in a vehicle (on parole) might have secreted a gun in the glove box after he saw the police. (Claypool v. Superior Court (2022) 85 Cal.App.5th 1092.)

Vehicle Searches

General Principles

• (1) Probable Cause search (AUTOMOBILE EXCEPTION): officers may search a vehicle w/o warrant if it is readily mobile and probable cause exists to believe it contains contraband or evidence of criminal activity. (People v. Johnson (2018) 21 Cal.App.5th 1026, 1034; People v. Moore (2021) 64 Cal.App.5th 291, 297.)
• (2) Reasonable Suspicion search (SEARCH-INCIDENT-TO-ARREST): if officers have lawfully arrested occupant of a vehicle, they may search the vehicle for everything pertaining to the crime for which he was arrested if they have RS that such evidence is inside the vehicle. (Arizona v. Gant (2009) 556 U.S. 332, 335.)
• (3) Inventory search: permitted if (1) reasonably necessary to tow the vehicle under the circumstances and (2) search conducted in accordance with standard procedures

Vehicle Search: Automobile Exception

• Probable Cause Search. Officers may search a vehicle w/o warrant if it is readily mobile and probable cause exists to believe it contains contraband or evidence of criminal activity. (People v. Johnson (2018) 21 Cal.App.5th 1026, 1034; People v. Moore (2021) 64 Cal.App.5th 291, 297.) (AUTOMOBILE EXCEPTION)
  • Probable cause exists when the known facts and circumstances are sufficient to warrant [a person] of reasonable prudence in the belief that contraband or evidence of a crime will be found. (People v. Hall (2020) 57 Cal.App.5th 946, 951.)
  • Probable Cause (PC) Factors (non-exhaustive)
    • High Crime Area. CA Courts traditionally skeptical of high-crime factor in determining probable cause, but “[t]he reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely.” (People v. Moore (2021) 64 Cal.App.5th 291, 301, internal citation omitted.)
    • Nervous, evasive behavior. Potentially significant factor. (Illinois v. Wardlow (2000) 528 U.S. 119, 124.)
      • Insufficient on its own. (People v.Valenzuela (1994) 28 Cal.App.4th 817, 831.)
• SCOPE of Search. Officer may conduct a warrantless search of any area of the vehicle in which the evidence might be found. (People v. Evans (2011) 200 Cal.App.4th 735, 753.)
  • Passenger Compartment vs. Trunk. Where officer has PC to believe evidence of crime will be found specifically in passenger compartment of a vehicle, and no other subsequent discovery provides further PC to believe evidence will be found in the trunk, search of trunk exceeds permissible scope of warrantless search. (People v. Leal (2023) 93 Cal.App.5th 1143.)
  • Unoccupied parked car. Automobile exception applies. (People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 98-101.)
• Location of Vehicle. Applies not only to vehicles on a street or highway, but also found in a parking lot or carport. (People v. Hochstraser (2009) 178 Cal.App.4th 883, 903-904.)
• Ofc Subjective Intent Irrelevant. Where the court finds that officers have probable cause to search, the officer’s subjective intent in performing the search is irrelevant. (People v. McGee (2020) 53 Cal.App.5th 796, 805, fn. 3.)
• PC for Infraction: where PC exists, officer may search vehicle irrespective of whether the offense is an infraction and not an arrestable offense. (People v. McGee (2020) 53 Cal.App.5th 796, 805.)
  • PC to search vehicle for open containers of alcohol after noticing odor of beer during traffic stop. (People v. Molina (1994) 25 Cal.App.4th 1038, 1042.)

Vehicle Search: Search-Incident-to-Arrest Exception

• Reasonable Suspicion Search. If officers have lawfully arrested occupant of a vehicle, they may search the vehicle for everything pertaining to the crime for which he was arrested if they have RS that such evidence is inside the vehicle. (Arizona v. Gant (2009) 556 U.S. 332, 335.)
• Two-pronged test. (People v. Johnson (2018) 21 Cal.App.5th 1026, 1035.) May search if EITHER:
  • D within reaching distance of passenger compartment at time of search; OR
  • It is reasonable to believe vehicle contains evidence of the offense
• Entire Passenger Compartment. Gant provides the generalized authority to search the entire passenger compartment of a vehicle and any containers therein incident to arrest. (People v. Nottoli (2011) 199 Cal.App.4th 531, 555.)
• DUI Arrest. “When a driver is arrested for driving under the influence, or being under the influence, it will generally be reasonable for an officer to believe evidence relating to that crime might be found in the vehicle.” (People v. Quick (2016) 5 Cal.App.5th 1006, 1012-1013.)

Vehicle Search: Inventory Search

• Inventory search: permitted if (1) reasonably necessary to tow the vehicle under the circumstances and (2) search conducted in accordance with standard procedures
• Impound vs. Inventory. To determine whether a warrantless search is properly characterized as an inventory search, we focus on the purpose of the impound rather than the purpose of the inventory. (People v. Lee (2019) 40 Cal.App.5th 853, 867.)
  • An inventory search conducted pursuant to an unreasonable impound is itself unreasonable. (People v. Torres (2010) 188 Cal.App.4th 775, 786.)
• Whether impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and officers’ duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft. (People v. Williams (2006) 145 Cal.App.4th 756, 761.)
  • Police officers may exercise discretion in determining whether impounding a vehicle serves their community caretaking function, so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. (People v. Banks (2023) 97 Cal.App.5th 376, 383, internal citations omitted.)
• Standardized Criteria.
  • Police exercise discretion determining whether impounding a vehicle serves their community caretaking function, so long as that discretion is exercised according to standard criteria.
  • Statutes authorizing impounding under various circumstances may constitute a standardized policy guiding officers’ discretion, though statutory authorization does not, in and of itself, determine the constitutional reasonableness of the seizure.  (People v. Torres (2010) 188 Cal.App.4th 775, 787.)
• Impound After Arrest. Impound authorized “[when] an officer arrests a person driving or in control of a vehicle for an alleged offense and the officer is, by this code or other law, required or permitted to take, and does take, the person into custody.” (Veh. Code, § 22651(h)(1).)
• Investigatory Pretext for an impound search violates the Fourth Amendment. The relevant question is whether the impounding was subjectively motivated by an improper investigatory purpose.  (People v. Torres (2010) 188 Cal.App.4th 775, 791.)

Vehicle Search: Marijuana

• Primer
  • Pre-Proposition 64. Police officer’s observation of any amount of marijuana in a vehicle established probable cause to search under the automobile exception.
  • Proposition 64.
    • It is lawful for persons 21 years or older, under defined circumstances, to possess and transport up to 28.5 grams of cannabis. (HS 11362.1(a)(1).)
    • Cannabis and cannabis products involved in any way with conduct 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. (HS 11362.1(c).)
  • Post-Prop 64. “[L]awful possession of marijuana in a vehicle does not provide probable cause to search the vehicle.” (People v. Hall (2020) 57 Cal.App.5th 946, 948.)
• Unlawful Marijuana-Related Conduct Post-Prop 64
  • Possess/transport > 28.5 grams of cannabis. (HS 11362.1(a)(1).)
  • Smoke cannabis while driving or riding in passenger seat of a vehicle. (HS 11362.3(a)(7), (a)(8).)
  • Possess an open container of cannabis while driving or riding in passenger seat of vehicle. (HS 11362.3(a)(4).)
  • Drive a vehicle while under the influence of any drug. (VC 23152(f).)
  • Under 21 unlawful to possess marijuana. (HS 11357(a)(1).)
• Key Factors Dispositive on Whether Lawful Search:
  • Open containers? If Y -> PC
    • Usable amount of loose marijuana scattered on floorboard violates open container law under HS 11362.3 if:
      • (1) the marijuana was a useable amount
      • (2) the marijuana must be imminently usable condition
      • (3) the marijuana must be readily accessible. (Sellers v. Superior Court (Jan 29, 2026) 2026 Cal. LEXIS 269.)
    • Marijuana blunt, wrapped in paper but for a ‘speck of marijuana’ on the flattened end,” was “an open container” of marijuana within the meaning of section 11362.3. (In re Randy C. (2024) 101 Cal.App.5th 933, 940-941.)
    • Knotted plastic baggie is not an “open container” of marijuana within the meaning of section 11362.3. (People v. Johnson (2020) 50 Cal.App.5th 620, 632.)
    • Unsealed closed tube container, not an “open container.” (People v. Schumake (2019) 45 Cal.App.5th Supp. 1, 6.)
  • Odor of marijuana: fresh or burnt? If Y -> DEPENDS
    • Odor of marijuana alone no longer provides an inference that a car contains contraband because individuals over the age of 21 can now lawfully possess and transport up to 28.5 grams of marijuana. (People v. Johnson (2020) 50 Cal.App.5th 620, 634.)
    • Odor fresh & burnt marijuana + closed container does not furnish PC to search. (People v. Shumake (2019) 45 Cal.App.5th Supp. 1.)
    • Odor of marijuana + presence in vehicle + high crime + furtive conduct furnishes PC to search. (People v. Fews (2018) 27 Cal.App.5th 553.)
    • Strong odor of burnt marijuana + vehicle occupants minors + admission to smoking 2 hours earlier furnishes PC to search. (People v. Castro (2022) 86 Cal.App.5th 314.)
    • Odor of burnt marijuana emanating from car but unclear if “freshly burnt” does NOT furnish PC to search. (Blakes v. Superior Court (2021) 72 Cal.App.5th 904, 912.)
    • Strong odor fresh marijuana + high crime area + furtive conduct furnished PC to believe unlawful quantity. (People v. Moore (2021) 64 Cal.App.5th 291.)
  • Driving while using? If Y -> PC
    • Unlawful to ingest marijuana while driving motor vehicle. (HS 11362.3(a)(7).)
    • Odor of burnt marijuana furnished PC to search vehicle. (People v. Waxler (2014) 224 Cal.App.4th 712, 721.)
  • Large Quantity of marijuana? If Y -> DEPENDS
    • Not unlawful to possess < 1 oz. marijuana. (HS 11362.1(a).)
    • Medical marijuana: quantity limitation inapplicable. (HS 11362.45(i).)
    • HS 11362.5(d) permits D to raise defense to marijuana charges given her status as a qualified patient; but it does not grant her immunity from arrest or search. (People v. Mower (2002) 28 Cal.4th 457.)
  • Age of vehicle occupants?  < 21 -> PC
    • Under 21 unlawful to possess marijuana. (HS 11357(a)(1).)
    • Minor driver + unburned blunt in passenger possession + odor of fresh marijuana -> PC. (In re Randy C. (2024) 101 Cal.App.5th 933.)
    • Strong odor of burnt marijuana + minor driver & minor passengers + admission to smoking marijuana -> PC. (People v. Castro (2022) 86 Cal.App.5th 314, 320.)
• Closer Look at Key Cases
  • Blakes v. Superior Court (2021) 72 Cal.App.5th 904
    • Facts: Illegally tinted windows, D took 1/10 of a mile to pull over and stop, smell of burnt marijuana emanating from the car, D had a suspended license, D had prior arrest for felon in possession of a firearm
    • Held: No PC to search
    • Rationale: There are only two possible illegal uses of marijuana that could have supported PC to believe a crime involving marijuana was being committed: (1) driving under the influence of marijuana or (2) driving with an open container of marijuana
      • Fact that there was a smell of burnt marijuana emanating from the car was insufficient to support either theory of PC, because neither detective could determine if the marijuana was freshly burnt, removing any support for an inference that D was smoking marijuana while driving
  • People v. Johnson (2020) 50 Cal.App.5th 620
    • Facts: D parked on side of road, officer smelled odor of marijuana emanating from car and saw plastic baggie knotted at the top containing two grams of marijuana in plain view
    • Held: odor of marijuana alone no longer provides an inference that a car contains contraband
    • Held: a knotted plastic baggie is not an “open container” for HS 11362.3(a)(4)
    • Rationale: Open container refers to the absence of al id or some other type of cover or material separating the content from the outside such that there is no barrier to accessing the content. A baggie knotted at the top presents a barrier to accessing its contents

House Searches

• At ” ‘the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” (People v. New York (1980) 445 U.S. 573, 589-590.) Accordingly, “the Fourth Amendment has drawn a firm line at the entrance to the house.” (Id. at p. 590.) Thus, “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” (Kyllo v. United States (2001) 533 U.S. 27, 31.)
• Emergency Aid Exception: police may enter a home w/o a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. (Brigham City v. Stuart (2006) 547 U.S. 398, 400; People v. Troyer (2011) 51 Cal.4th 599, 606.)
• Exigent Circumstances Exception
  • Investigating unoccupied running car did not warrant entry into home. (People v. Smith (2020) 46 Cal.App.5th 375.)
  • Flight of suspected misdemeanant does not categorically justify warrantless entry into a home. An officer must consider all circumstances in a pursuit case to determine whether there is a law enforcement emergency. (Lange v. California (2021) 141 S. Ct. 2011.)
  • Burglary in progress may constitute exigent circumstance. (People v. Lujano (2014) 229 Cal.App.4th 175, 183.)
• Community-Caretaker Exception: permits police to enter if search is unrelated to the criminal investigation duties of the police, justifies warrantless entry into home for a security check

Chemical Tests

Breath Test

• Implied Consent. Lawfully arrested D for DUI impliedly consents to providing officers with sample of breath or blood for testing. (VC 23612(a)(1)(A).)
• Search Incident to Arrest: breath test may be administered as a search incident to arrest. (Birchfield v. North Dakota (2016) 579 U.S. 438.)

Blood Test

• Unconscious Driver.
  • When driver is unconscious and cannot be given breath test, the exigent circumstances doctrine generally permits a blood test without a warrant. (Mitchell v. Wisconsin (2019) 139 S. Ct. 2525.)
    • “When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.” (Mitchell v. Wisconsin (2019) 139 S. Ct. 2525, 2539 (plur. opn. of Alito, J.).)
  • Unconscious driver, police did not have a reasonable opportunity to use a breathalyzer before D was hospitalized for his injuries, held, OK. (People v. Nault (2021) 72 Cal.App.5th 1144.)
  • But: unconscious driver at hospital 90 minutes after incident, held, no exigent circumstance permitted warrantless blood draw. (People v. Alvarez (2023) 98 Cal.App.5th 531.)
• Exigent Circumstances
  • Forced blood draw of DUI arrestee justified where (1) ofc delayed on scene b/c D caused accident with injuries requiring attention; (2) D combative requiring physical restraints, delaying DUI investigation; (3) D refused to tells officers when he stopped drinking; (4) officers forced to “hogtie” D at CHP office b/c so out of control. (People v. Toure (2015) 232 Cal.App.4th 1096.)
• Botched Admonition.
  • Admonition though not entirely accurate, was not patently false and did sufficiently inform D. Failure to strictly follow implied consent law did not violate D’s rights. (People v. Harris (2015) 234 Cal.App.4th 671.)
• Consequences of Refusal
  • D not advised of consequences of refusal, told she was “required” to undergo blood draw. Held, no violation. (People v. Lopez (2020) 46 Cal.App.5th 317.)
• Probation Condition
  • Warrantless blood draw OK where condition of probation. (People v. Cruz (2019) 34 Cal.App.5th 764.)
• Forced Blood Draw + Warrant
  • Medically approved manner = OK. (People v. Rossetti (2014) 230 Cal.App.4th 1070.)

Private Search

• Fourth Amendment does not apply to private searches. (People v. Wilson (2020) 56 Cal.App.5th 128, 141.)
• If a government search is preceded by a private search, the government search does not implicate the Fourth Amendment as long as it does not exceed the scope of the initial private search. (United States v. Jacobsen (1984) 466 U.S. 109, 115-117.)
• Child Porn. Google scanning user content, assigning hash values to that content, flagging offending images with hash values that match previously reviewed child pornography images, and sending the apparent child pornography to NCMEC–constitute private action that was not performed at the direction of the government (and thus 4th Amendment protection is wholly inapplicable). (People v. Wilson (2020) 56 Cal.App.5th 128, 144.)

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Exclusionary Rule

General Principles

• Under the fruit of the poisonous tree doctrine, both direct and indirect products of an unreasonable search are subject to exclusion. (People v. Werner (2012) 207 Cal.App.4th 1195, 1213.)
• “Suppression of evidence … has always been our last resort, not our first impulse.” (Hudson v. Michigan (2006) 547 U.S. 586, 591.)
• Exclusionary rule exists to deter police misconduct. (Davis v. United States (2011) 564 U.S. 229, 236-237.)

Exceptions

Good Faith Reliance Doctrine

• General Rule. When police officers are complying in good faith with the law as it existed at the time, there is no reason to apply the exclusionary rule. (People v. Youn (2014) 229 Cal.App.4th 571, 579.)
  • Test: Whether the search was objectively reasonable under binding legal precedent at the time of the search. (People v. Smith (2020) 46 Cal.App.5th 375, 391.)
    • The good-faith inquiry is confined to the objectively ascertainable question of whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances. (Herring v. United States (2009) 555 U.S. 135, 141.)
• When a search is found to be invalid “a Fourth Amendment violation is shown and the question … becomes whether such constitutional violation is appropriately remedied by the application of the judicially created exclusionary rule which prohibits the admission at trial of the evidence obtained during the unlawful search.” (People v. Downing (1995) 33 Cal.App.4th 1641, 1650-1651.)
• Exclusion of the evidence is compelled “only where it “result[s] in appreciable deterrence.” (Herring v. United States (2009) 555 U.S. 135, 141.)
• Deliberate vs. Negligent Misconduct. “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system … [T]he exclusionary rules serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systematic negligence.” (Herring v. United States (2009) 555 U.S. 135, 141.)
  • “[W]hen police mistakes are the result of negligence … rather than systemic errors or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ In such a case, the criminal should not ‘go free because the constable has blundered.’” (Herring v. United States (2009) 555 U.S. 135, 147-148.)
• Ofc reliance on court-maintained data that D on probation. Held, good faith exception applied, even assuming D’s probation had been terminated due to AB1950. (People v. Pritchett (2024) 102 Cal.App.5th 355.)

Independent Source Doctrine

• General Rule: “allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source.” (Utah v. Strieff (2016) 136 S. Ct. 2056, 2061; Murray v. United States (1988) 487 U.S. 533, 537.)
  • Search Warrant. Where illegal conduct, then police obtain a SW and…
    • Supporting docs don’t cite info derived from illegal conduct -> no exclusion (People v. Weiss (1999) 20 Cal.4th 1073, 1078.)
    • Supporting docs contain PC apart from illegal conduct & officers not prompted to obtain SW by what they observed during illegal conduct -> no exclusion. (People v. Weiss (1999) 20 Cal.4th 1073, 1082.)

Inevitable Discovery Doctrine

• General Rule: permits admission of evidence that would have been discovered even without the unconstitutional source. (Nix v. Williams (1984) 467 U.S. 431, 443-444.)
  • The inevitable discovery doctrine acts as an exception to the exclusionary rule and permits the admission of otherwise excluded evidence if the prosecution can establish by a preponderance of the evidence that the information would have been inevitably discovered by lawful means, such as routine police procedures. (People v. Banks (2023) 97 Cal.App.5th 376, 383.)
  • Officer suspected stolen vehicle, D w/o valid license, police agency had standardized policy re: inventory searches. Held, evidence found inside vehicle would have been inevitably discovered pursuant to lawful inventory search. (People v. Banks (2023) 97 Cal.App.5th 376, 383.)

Attenuation Doctrine

• General Rule: “Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstances, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” (Utah v. Strieff (2016) 136 S. Ct. 2056, 2061.)
  • Three factors to assess attenuation (Brown v. Illinois (1975) 422 U.S. 590.):
    • Temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search
      • Favors attenuation if “substantial time” elapses between an unlawful act and when the evidence is obtained
      • Less then 2 hours favored suppression. (Brown v. Illinois (1975) 422 U.S. 590, 604.)
    • Presence of intervening circumstances
      • Illegal search + signed search warrant next day not based on information gleaned during illegal search -> favored admission. (Segura v. United States (1984) 468 U.S. 796, 814.)
      • Illegal search where unlawful traffic stop + outstanding valid arrest warrant à admissible. (Utah v. Strieff (2016) 136 S. Ct. 2056.)
    • Purpose and flagrancy of misconduct

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Warrants & Wiretaps

Search Warrants

• Presumptively Reasonable. A search is presumptively reasonable, and thus in compliance with the Fourth Amendment, if supported by a warrant describing with particularity the thing or the place to be searched. (People v. Weiss (1999) 20 Cal.4th 1073, 1082.)
• The validity of a warrant turns on three factors: probable cause, particularity, and overbreadth
• Particularity. Particularity is the requirement that the warrant must clearly state what is sought. (In re Grand Jury Subpoenas Dated Dec. 10, 1987( 9th Cir.1991) 926 F.2d 847, 856.)
  • “It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” (People v. Amador (2000) 24 Cal.4th 387, 392.)
  • This requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized. (People v. Frank (1985) 38 Cal.3d 711, 724.)
  • The description in a search warrant must be sufficiently definite that the officer conducting the search can, with reasonable effort ascertain and identify the place intended. Nothing should be left to the discretion of the officer. (People v. Dumas (1973) 9 Cal.3d 871, 880.)
• Overbreadth. “Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.” (In re Grand Jury Subpoenas Dated Dec. 10, 1987 (9th Cir. 1991) 926 F.2d 847, 856-857.)
• Under the fruit of the poisonous tree doctrine, both direct and indirect products of an unreasonable search are subject to exclusion. (People v. Werner (2012) 207 Cal.App.4th 1195, 1213.)
• “Suppression of evidence … has always been our last resort, not our first impulse.” (Hudson v. Michigan (2006) 547 U.S. 586, 591.)
• Admissibility. If electronic information obtained in response to search warrant includes affidavit from COR verifying authenticity of information in compliance with EC 1561, such evidence is admissible without testimony of live custodian. (PC 1546.1(d)(3); EC 1562.)

Arrest Warrants

• Ramey Warrant. An arrest warrant issued prior to the court filing of a criminal case against a specific defendant. (See People v. Ramey (1976) 16 Cal.3d 263.)
  • The formal filing of a written complaint is not a condition precedent to issuance of an arrest warrant. (People v. Case (1980) 105 Cal.App.3d 826, 832.)
  • Arrest Within D’s Own Residence: arrests in one’s home for a felony or misdemeanor may only be made with prior judicial authorization in the form of an arrest warrant. (People v. Ramey (1976) 16 Cal.3d 263, 276.)
    • Police officers need either (1) an arrest warrant or (2) probable and exigent circumstances to lawfully enter a person’s home to arrest its occupant. (Kirk v. Louisiana (2002) 536 U.S. 635.)
    • Exceptions:
      • Consent. When the occupant of a house consents to the police officers’ entry of his home. (People v. Superior Court (Kenner) (1977) 73 Cal.App.3d 65, 68.)
        • BUT: “an alleged consenter must be aware of the purpose of the requested entry and a consent obtained by trickery or subterfuge renders a subsequent search and seizure invalid.” (Id. at p. 69.)
      • Exigent Circumstances. A warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling. (Minnesota v. Olson (1990) 495 U.S. 91, 100.)
    • Sufficiency of the Evidence to Believe the Suspect is Inside. A police officer must have a “reason to believe” the suspect is inside his residence. (Payton v. New York (1980) 445 U.S. 573.)
• Steagald Warrant. If the person is in a third party’s home, absent consent to enter, a search warrant for the residence must be obtained in addition to the arrest warrant. (Steagald v. United States (1981) 451 U.S. 204, 211-222; People v. Codinha (1982) 138 Cal.App.3rd 167; see P.C. § 1524(a)(6).)

Wiretaps

• In General. Generally, wiretapping is prohibited. (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1053.)
• PC 629.52. Application for wiretap can be made if PC to believe suspect committed/about to commit one of these offenses:
  • Drug Sales (HS 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6) where substance exceeds 10 gallons by liquid volume or 3 lb. of solid substance by weight
  • Murder, solicitation to commit murder, PC 209, or commission of felony involving a destructive device (PC 18710, 18715, 18720, 18725, 18730, 18740, 18745, 18750, 18755)
  • Felony PC 186.22
  • Felony PC 11418, 11418.5, 11419
  • PC 236.1
  • Attempt or conspiracy to commit any of the above
• Requirements. Wiretap authorized if:
  • (1) PC to believe individual has committed enumerated offense in PC 629.52
  • (2) the communications concerning illegal activities will be obtained through the wiretap
  • (3) the communications device will be used by the person whose communications are to be intercepted
  • (4) wiretap is necessary – “[n]ormal investigative procedures have been tried and have failed or reasonably appear either unlikely to succeed if tried or too dangerous.” (629.52(d).)
• Necessity. The existence of a conspiracy “is an important factor in analyzing the necessity for a wiretap.” (People v. Leon (2007) 40 Cal.4th 376, 391-392.)
• Suppression. Defendants may move to suppress the contents of communications intercepted by wiretap only on the basis that the contents were obtained in violation of the statute or the Fourth Amendment. (PC 629.72.)