Persons, Containers or Incident to Arrest
Category > Persons, Containers or Incident to Arrest
Search of the car two blocks away from the arrest was not a valid search incident to arrest although the search was proper where the officer saw marijuana in plain view. The search of defendant’s car parked two blocks from the site of his arrest did not take place where he was apprehended and was not a valid search incident to arrest. However the officer’s observation of a bag of marijuana in plain view on the passenger seat established probable cause to believe the car contained evidence of criminal activity.id: 25603
The search was illegal where it was conducted as a search incident to an infraction.When the officer decided to search the minor he had no probable cause to make an arrest and no evidence to show the minor was guilty of anything other than an infraction (for recently smoking marijuana). There was no reason to believe he possessed enough to constitute a jailable offense. The subsequent search incident to arrest was unlawful.id: 25318
Implied consent doesn’t justify the warrantless blood extraction from an unconscious suspect. The trial court found the blood extraction from an unconscious defendant suspected of drunk driving was permissible without a warrant or exigent circumstances because of California’s “implied consent” law, which declares that one who drives a vehicle in the state is deemed to consent to blood alcohol testing. The consent imputed to drivers under that law, cannot, by itself, justify the warrantless seizure. However, the officer reasonably relied on the statute in seizing defendant’s blood, bringing the case within the good faith exception to the exclusionary rule.id: 24567
Police could properly seize a package that smelled like marijuana but could not search the package without a warrant.Defendant sent a package that smelled like marijuana and Fed Ex employees notified police. The subsequent warrantless search of the package violated the Fourth Amendment. While a container’s mobility may constitute an exigent circumstance sufficient to justify a warrant less seizure, it cannot alone justify a search once the package is seized. The officers should have obtained a warrant to search the package. The prosecution on appeal also argued the search was justified by plain smell, similar to the plain view doctrine, but that issue was forfeited by the DA’s failure to raise it during the suppression hearing.id: 23228
The trial court erred in denying the suppression motion where the prosecution failed to establish an exigent circumstance to justify the warrantless seizure of evidence from defendant’s penis.Defendant was arrested for rape and he was taken to a room where samples of his pubic hair and clothes were taken along with swabs from the outside of his penis. The trial court erred in denying his motion to suppress evidence seized from his penis without a warrant. The prosecution put on no evidence regarding the destructibility of the evidence or that the police believed the evidence could be destroyed absent the warrantless seizure. The search could not be justified under the search-incident-to arrest exception to the warrant requirement because the seizure of evidence of a person’s genitalia incident to arrest requires an exigent circumstance that was not shown here. However, the error was harmless in light of the victim’s credibility and the evidence taken from her underwear.id: 22714
Search of defendant’s car was not justified as incident to arrest or under the automobile exception where he had been stopped for erratic driving and was lying on the ground after being pepper sprayed at the time of the search. Police stopped defendant for traffic violations. When he refused to leave the car, officers broke the windshield, tased and pepper sprayed him. They arrested him for interfering with a police investigation. When searching the car they found 11 empty sandwich bags and $65 but no drugs. When they searched the car again at the impound yard they found cocaine in an air vent. The searches were not justified under the search incident-to-arrest exception to the warrant requirement following Arizona v. Gant (2009) 129 S.C. 1710, as the first was conducted while defendant was lying face down on the ground outside the vehicle with the officers on top of him. It was not reasonable to believe evidence of the crime of arrest (interfering with an investigation) would be found in the search. Nor was the search justified by the automobile exception as defendant’s erratic driving and nervous behavior did not provide probable cause to search the car at the scene or later at the impound yard. id: 22464
The search conducted "incident to arrest" which recovered a handgun in the house while defendant was handcuffed in the police car exceeded the scope of Chimel and suppression was required. The handgun found in defendant's home was found in an area that was under his immediate control when he was arrested. However, it was not under his immediate control when he was confined in a police car in handcuffs some distance away. The search was beyond the scope of the arm's reach rule of Chimel v. California (1969) 395 U.S. 752. This point was clarified in Arizona v. Gant (2009) 129 S.Ct. 1710 (in relation to vehicle searches). Suppression of the evidence was required. id: 21124
Supreme Court clarifies scope of search of vehicle incident to arrest of former
occupant. In New York v. Belton, U.S. 453 (1981), the Court held that when a police officer lawfully arrests the occupant of a vehicle, the officer may, incident to that arrest, search the passenger compartment of the automobile and any containers therein. Here, police officers arrested defendant after he had parked his car, gotten out of it, and was standing about 10 to 12
feet from the car. The officers then searched the passenger compartment of the car and found a gun and cocaine. In a 5 to 4 decision written by Justice Stevens, the Supreme Court held that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee
has been secured and cannot obtain access to the interior of the car. Instead, the Court held, police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Justice Scalia wrote a concurring opinion;
Justice Breyer and Justice Alito wrote dissents.id: 21356
Supreme Court says school authorities’ search of girl’s underwear was unreasonable. School officials received reports that students were bringing drugs and weapons to school and that plaintiff, a 13-year-old student, had held a party at which alcohol had been served. A week later, a student gave a school official a prescription pain reliever, said that a girl named Marissa had given it to him, and stated that students were planning to take the pills at lunch. Officials confronted Marissa, who had several pills and a razor blade in her possession; Marissa told the officials that plaintiff had given her the pills, but she did not say when. In a day planner seized from Marissa, officials found knives, lighters, and a cigarette. When called to the school office, plaintiff admitted that the day planner belonged to her, but said that she had lent it to Marissa, that none of the contents belonged to her, and that she did not know anything about the pills seized from Marissa. The officials then searched plaintiff; during the search, which was conducted by two female school officials in the nurse’s office, the officials directed plaintiff to remove all of her clothes except her bra and underpants. The officials directed plaintiff to pull her bra out and shake it and to pull out the elastic on her underpants. No pills were found. The Supreme Court, in an 8-1 decision written by Justice Souter, held that the search of plaintiff’s underwear violated the Fourth Amendment. Although the Court found that the school officials had reasonable suspicion sufficient to justify a search of plaintiff’s outer clothing, it held that the officials lacked sufficient grounds to search her underwear.id: 21433
Teacher's search of student's purse for identification following the student's disruptive behavior violated the Fourth Amendment.The teacher opened the student's purse to find an identification document so she could write a referral for the student's disruptive behavior. She had no suspicion that the student was involved in criminal behavior. Mere disruptive behavior by the student did not justify the search. The teacher's initial limited search of the student's purse for identification was unreasonable under the Fourth Amendment. The trial court erred in denying the motion to suppress the knife found in the purse.id: 18306
Suppression was required if the search incident to a lawful arrest based on an outstanding warrant was obtained through an unlawful traffic stop.Evidence seized in a lawful search incident to a lawful arrest based upon an outstanding warrant must be suppressed if the police invented the ground for the traffic stop which led to the
discovery of the warrant. The trial court erred by finding it did not need to decide whether the police made up the claim regarding the faulty brake light since any taint arising from such an unlawful stop was dissipated by the discovery of the arrest warrant prior to the search.id: 19309
The search conducted "incident to arrest" which recovered a handgun in the house while defendant sat handcuffed in the police car exceeded the scope of Chimel and violated the Fourth Amendment.The handgun found in defendant's home was found in an area that was under his immediate control when he was arrested. However, it was not under his immediate control when he was confined in a police car in handcuffs some distance away. The search in the house was beyond the scope of the arm's reach rule of Chimel v. California. (1969) 395 U.S. 752.id: 20107
Supreme Court rejects "search incident to citation" where there is no arrest.Iowa law provides that the issuance of a citation in lieu of an arrest "does not affect the officer's authority to conduct an otherwise lawful search." The Iowa Supreme Court interpreted this provision as providing authority to conduct a full-blown search of an automobile and driver where the police elect not to make a custodial arrest and instead issue a citation, i.e., "a search incident to citation." In a unanimous opinion written by Chief Justice Rehnquist, the Supreme Court held that the Fourth Amendment does not permit such a search incident to a citation. "[While the concern for officer's safety in this context may justify the 'minimal' additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search. The court emphasized that an officer may perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, <i>Terry v. Ohio</i>, 392 U.S. 1 (1968). He may also conduct a "<i>Terry</i> patdown" of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, <i>Michigan v. Long</i>, 463 U.S. 1032, 1049 (1983), and if he makes a custodial arrest, he is permitted by <i>New York v. Belton</i>, 453 U.S. 454, 460 (1981) to conduct a full search of the passenger compartment, including any containers therein.id: 15142
Search of defendant's purse taken from the living room after her arrest was not justified as incident to arrest or a booking search.Officers arrested defendant in her living room. She asked if she could get something out of her purse which was on the floor. She then removed her wallet from the purse. Officers then took the purse and later searched it. The search was not justified as incident to arrest because it was not conducted at the time of her arrest. Moreover, the search was not justified under a booking search theory because she had left the purse behind when arrested and the purse was therefore not considered an extension of defendant's person at the time of the arrest.id: 11167
Defendant's pockets were not containers within the scope of a lawful vehicle search.At the time defendant was searched, the officers had probable cause to search the van and its contents. However, defendant's mere presence in the van was not sufficient to establish probable cause to search him. Nor can defendant's clothing be thought of as separate from his person and thus like his duffel bag, among the contents of the van. Moreover, the search could not be justified as incident to a yet-to-be-executed arrest because if there was no probable cause to search defendant then there was no probable cause to arrest him.id: 11156
Probable cause to believe a lunch bag in the car contained marijuana required a search warrant before opening the bag.The warrantless search of a lunch bag seized from the trunk of defendant's car was unlawful because the officers had probable cause to believe marijuana would be found only in a brown lunch bag and nowhere else in the car. The officers should have obtained a search warrant before opening the bag.id: 11166
Blood sample drawn without consent was improper after appellant had provided the police with a urine sample.Appellant was lawfully arrested for drunk driving. At the police station he consented to a urine test and provided a sample to the police. Officers later believed a blood sample would provide the most accurate reading of blood alcohol and would also allow them to test for narcotics. Appellant refused the test and the officers restrained him while the lab technician took a blood sample. The Superior Court should have granted the suppression motion. Having already obtained one sample from appellant with his consent, the government did not demonstrate any need to force him to undergo a second intrusion.id: 10558
Using DNA sample taken from defendant who was arrested but not charged does not violate the Fourth Amendment. Taking and using a DNA sample from a defendant who is validly arrested for a felony on probable cause but never formally charged does not violate the Fourth Amendment or defendant’s right to privacy.id: 27497
Using DNA sample taken from defendant who was arrested but not charged does not violate the Fourth Amendment.Taking and using a DNA sample from a defendant who is validly arrested for a felony on probable cause but never formally charged does not violate the Fourth Amendment or defendant’s right to privacy.id: 27445
The defendant has the burden of proof on the “reasonable manner” issue when a valid search warrant authorizes a blood draw. When blood is drawn from a person arrested for driving under the influence, the Fourth Amendment requires that it be drawn in a “reasonable manner.” The defendant has the burden of proof on the “reasonable manner” issue.id: 25950
If a DUI suspect freely chooses a blood test over a breath test the arresting officer does not need a warrant for the blood draw.A police officer arrested defendant for drunk driving and informed him that he had to submit to a breath or blood test to measure blood alcohol content. The defendant elected a blood test. The officer was then not required to get a search warrant to draw the blood since it qualified as a search incident to arrest.id: 25886
The prosecution failed to show exigent circumstances justifying the failure to obtain a warrant before drawing the DUI’s suspect’s blood where the officer was engaged in routine investigation before the blood draw.The drunk driving suspect was injured in an accident and taken to the hospital where police conducted a warrantless blood draw to determine his blood alcohol content. In Missouri v. McNeely (2013) 569 U.S. 141, the court held that such warrantless searches were unreasonable absent exigent circumstances. The prosecution did not establish exigent circumstances for bypassing the warrant requirement where the investigating officer spent time interviewing witnesses at the accident scene, communicated with the victim’s family at the hospital and spoke with defendant while awaiting medical care. There was no evidence shown as to why the officer could not have obtained a warrant before the blood draw. The error was harmless where other evidence would have shown an elevated blood alcohol content even if the blood test evidence had been suppressed.id: 25659
It was reasonable under the state and federal constitutions to require defendant to submit to a swab of his check as part of a routine jail booking procedure following a valid arrest for felony arson.Defendant was validly arrested on probable cause to believe he had committed felony arson. The DNA Act of 2004, requiring the collection of a DNA sample following arrest did not violate the Fourth Amendment or the California Constitution. The court noted its holding may not apply to defendants in other circumstances such as where an arrest is made without probable cause, or the offense is a misdemeanor.id: 25606
Evidence supported the trial court’s finding that the blood draw was consensual notwithstanding the officer’s failure to advise defendant of the consequences for refusing the blood draw.Defendant was arrested for driving under the influence of a controlled substance. The officer instructed defendant she was required to undergo a blood draw by the state’s implied consent law, but did not relate the law’s admonition regarding the consequences for refusing the test. Defendant did not object or resist and the draw was performed without a warrant. Evidence supported the trial court’s finding of consent to the blood draw notwithstanding the officer’s omission of the admonitions.id: 26689
Defendant’s purported consent to a blood test (after police obtained a search warrant) and failure to submit to a breath test constituted a refusal to submit to a chemical test. The DMV suspended defendant’s driver’s license for one year in a drunk driving case. The record supported the implied finding that she refused to submit to a chemical test. She argued that she had a right under Missouri v. McNeely (2013) 133 S. Ct. 1552, to force police to obtain her consent before taking her blood for testing. However, although she had a right to be free from a warrantless coerced blood draw following a lawful arrest, she had no such right with respect to a breath test. Her consent to a blood draw (after a warrant was obtained) to the exclusion of a breath test, constituted a refusal to submit to a chemical test.id: 25059
A person arrested for driving under the influence may not defeat a search incident to arrest or an inventory search by locking incriminating evidence inside the car. Defendant was detained for certain Vehicle Code violations and the officer observed symptoms suggesting he may have been under the influence. Thereafter, defendant removed his coat and threw it into the car, along with his keys, and locked the car. Defendant was arrested for being under the influence of a controlled substance. The subsequent search of the car was valid as an inventory search aimed at securing the car and its contents, and as a search incident to arrest.id: 24986
Even if the warrantless blood draw exceeded the scope of the probation search condition, the error was harmless in light of the other evidence of guilt. Defendant argued that his general probation search condition did not authorize a warrantless nonconsensual blood draw. However, even if the blood draw exceeded the scope of the probation search condition, denial of the suppression motion was harmless given the other significant evidence linking defendant to the murders.id: 24827
Consent to a blood draw was valid after Birchfield where defendant was given the other less intrusive alternatives.Defendant was arrested for drunk driving and admonished that he was required to submit to a blood, urine or breath test, or face civil/criminal penalties. His consent to a blood test was not invalid in that it was given under threat of prosecution. Birchfield v. North Dakota (2016) 136 S.Ct. 2160, didn’t support his claim since he was given the other less intrusive alternative. id: 26406
Defendant could not challenge the forced blood draw given his earlier probation condition that required he submit to such a procedure.Defendant charged with drunk driving moved to suppress the results of a blood draw taken without his consent. However, defendant was on probation at the time, and as a condition of that probation, acknowledged that he had no right to refuse to a chemical test if arrested for drunk driving.id: 26162
While the vehicle search may have been improper under Gant, the evidence was admissible under the Leon exception since the officers relied in good faith on the law as it existed at the time of the search. Police searched defendant’s car “incident to arrest” after he had been arrested and was outside of the car. He argued on appeal that the search was improper under Arizona v. Gant (2009) 556 U.S. ___, which refined the permissible scope of a search incident to arrest of a recent occupant of a vehicle. Despite defendant’s claim that Gant must be applied retroactively, the evidence was nevertheless admissible under the good faith exception established in United States v. Leon (1984) 468 U.S. 897 because the officers relied in good faith upon the law that existed at the time of the search.id: 21584
McNeely did not require suppression of evidence of warrantless blood draw following the drunk driving arrest.Defendant was arrested for drunk driving causing injury and police took a blood sample over his objection and without a search warrant. Defendant moved to suppress the result of the blood test in light of Missouri v. NcNeely (2013) 133 S.Ct. 1552, where the court held a warrant may be required for such situations. However, the good faith exception to the exclusionary rule applied since all binding precedent permitted warrantless blood draws incident to arrest if done in a medically approved manner. In any event, defendant’s mandatory postrelease community supervision search and seizure condition authorized the warrantless blood draw.id: 23895
Warrantless blood draw was justified by exigent circumstances after Missouri v. McNeely due to the defendant’s combative behavior and the fact that he prevented the officers from performing field sobriety tests. Defendant argued mid-trial in his drunk driving case that the results of his blood tests should have been suppressed because of the warrantless blood draw. However, the court found exigent circumstances existed that supported the warrantless blood draw as the defendant was combative and prevented the officer from conducting field sobriety tests. The officers also knew the restraints on the defendant were uncomfortable and couldn’t be removed until he was booked in the jail (after the blood draw).id: 23933
Defendant voluntarily consented to the warrantless blood draw at the police station even though the officer partially misled him regarding the consequences of a refusal.Defendant argued the forced blood draw following his drunk driving arrest was unlawful under Missouri v. McNeely (2013) 133 S.Ct. 1552. However, defendant consented to the blood draw and his consent was voluntary even though he gave it in response to a partially misleading claim about the consequences of his refusal. And the blood was drawn in a reasonable manner even though done at the police station rather than a medical facility. Finally, even if defendant’s consent was invalid, the good faith exception to the exclusionary rule applied because the police reasonably relied on binding precedent to support the warrantless blood draw.id: 24008
Mandatory and warrantless collection and analysis of buccal swab DNA samples from felony arrestees does not violate the Fourth Amendment.The police took a buccal (inner cheek) swab sample from defendant without a warrant while he was under lawful arrest for a sex offense, as authorized by Penal Code sections 296, subd.(a)(2)(c ), and 296.1, subd.(a)(1)(A) as amended in 2004 by the passage of Prop 69. The 2004 amendment authorizing the mandatory and warantless collection and analysis of buccal swab DNA from felony arrestees does not violate the Fourth Amendment.id: 23401
Blood tests given to suspected drunk drives were reasonable under the Fourth Amendment where defendants chose the blood tests, they were performed by trained technicians, and there was no pain during the tests.Defendants were stopped for drunk driving and advised that under the implied consent law they were required to submit to a chemical test. Defendants opted for a blood test. In each case the blood was drawn in a reasonable manner for purposes of the Fourth Amendment. The unrebutted testimony of the police officers showed the defendants chose the blood test over a breath test, the blood was drawn by a person the officer believed to be a trained phlebotomist or blood technician and there was no pain or discomfort during the procedures.id: 23301
Search of defendant’s cell phone found in the car while he was secured in the police vehicle was justified as incident to the arrest. Defendant was arrested for driving under the influence and secured in a patrol car. The search of the vehicle incident to arrest was proper under Arizona v. Gant (2009) 129 S. Ct. 1710, where it was reasonable that evidence of the offense might be found in the vehicle. While searching the vehicle, police could also search containers including defendant’s cell phone, even where the cell phone was not on defendant’s person at the time.id: 22396
Search of a text message folder of defendant’s cell phone 90 minutes after his arrest was valid as a search incident to arrest. Approximately 90 minutes after lawfully arresting defendant and transporting him to jail, police conducted a warrantless search of the text message folder of the cell phone they took from his person after the arrest. The search was valid as being incident to a lawful custodial arrest.id: 21970
Even though the vehicle search was improper under Gant, the good faith exception applies because the search was valid at the time under Belton.Incident to defendant’s arrest, police search the glove compartment of his car while he was seated in the rear seat of the patrol car. The procedure was proper at the time of the search pursuant to New York v. Belton (1981) 453 U.S. 454, but improper later under Arizona v. Gant (2009) 556 U.S. ___. Gant must be applied retroactively and therefore applies in the present case. However, reversal is not required because the good faith exception to the exclusionary rule applies as the officers performed a search that was lawful at the time.id: 21322
Supreme Court permits search of passenger's purse in car on probable cause to believe car contains drugs.In a routine traffic stop, a police officer noticed a hypodermic syringe in the driver's shirt pocket. The driver said he used it to take drugs, and it was "uncontested" that this gave the officers probable cause to search the car. The officers ordered two female passengers out of the car, and then searched the passenger compartment, as permitted by U.S. v. Ross, 56 U.S. 798, 806 (1982). On the back seat, an officer found a purse, which one of the passengers claimed was hers. The officer searched the purse and found drugs, for which the passenger was convicted. In a 6-3 opinion written by Justice Scalia, the Supreme Court held that where a police officer has probable cause to believe there is contraband in a vehicle, he may search every container capable of holding the contraband even if he knows that the container does not belong to the owner of the car. Justice Stevens dissented, joined by Justices Souter and Ginsburg.id: 15141
Police could search automobile passenger compartment incident to the arrest of defendant standing next to the car who has possessed a loaded weapon.After the officer found a firearm on defendant’s person he had probable cause to make an arrest and could then conduct a search incident to arrest. The officer was thus justified in searching the passenger compartment of the vehicle next to defendant. Gant v. Arizona (2009) 556 U.S. ___, did not prohibit the search where the police had probable cause to arrest defendant for firearm possession. It did not matter whether the police had probable cause to believe the automobile contained evidence of a crime since this was not an automobile search but rather a search incident to arrest.id: 21164
Officer’s actions in pulling back the waistband and inspecting defendant’s crotch area did not constitute an improper “public strip search.” Defendant who was convicted of drug offenses, argued the trial court erred in denying his motion to suppress evidence unreasonably obtained during a “public strip search.” However, the officer’s search, effected by pulling back the waistband of his underwear and visually inspecting his crotch area did not constitute a public strip search, and met constitutional standards, in light of defendant’s parole status and reduce expectation of privacy. People v. Smithid: 20908
Search of the cell phone defendant was carrying 30 minutes after his arrest was justified as a search incident to arrest.Police seized defendant’s cell phone approximately one hour after he was transported to the police station. About 30 minutes later, while he was being interrogated, the arresting officer accessed the phone’s text message folder and retrieved an incriminating message. The officers actions were lawful under the Fourth Amendment as a valid search incident to arrest.id: 20474
Supreme Court says officers may keep defendant from entering home while they seek warrant.Police officers accompanied defendant's wife to the trailer where she lived with defendant, so they could "keep the peace" while she removed her belongings. When the wife emerged after collecting her possessions, she told the officers her husband had "dope" in there and she had seen him slide it underneath the couch. An officer knocked on the trailer door, told defendant what his wife had said, and asked permission to search, which was denied. While other officers left to get a search warrant, the officer told defendant (who by this time was out on the porch) that he could not re-enter the trailer unless a police officer accompanied him. He did so two or three times and each time an officer stood just inside the door to observe what he did. Two hours later the warrant was obtained, and a small amount of marijuana was found under the sofa. In an 8-1 opinion written by Justice Breyer, the Supreme Court held that "exigent circumstances" made it reasonable to prevent the defendant from re-entering the trailer unless accompanied by an officer. The police had good reason to fear that unless restrained, defendant would destroy the drugs before they could return with a warrant. Justice Souter concurred specially, and Justice Steven dissented, arguing that a higher value should have been placed on the sanctity of the home than on the prosecution of this "petty offense."id: 15134
Supreme Court upholds drug testing for students involved in any extracurricular activity.In Vernonia School District v. Acton, 515 U.S. 646 (1995), the Supreme Court held that suspicionless drug testing of student athletes at public high schools does not violate the Fourth Amendment. Here, the Court, by a 5-4 vote, extended Vernonia, holding that a policy that required all public middle and high school students to consent to urinalysis testing for drugs in order to participate in any extracurricular activity was a reasonable means of furthering the school district's interest in preventing and deterring drug use.id: 20143
Search of the mattress following defendant's arrest was proper where it was within her immediate reach or control even though she was handcuffed at the time.Officers responded to a tip that defendant was selling drugs from a motel room. After defendant refused to open the door, the officers entered forcibly. They ordered her to lie on the floor and handcuffed her. Her 11 year-old daughter was crying near the bed. The officers found a broken pipe and a vial containing drugs in the bathroom. Thereafter, they lifted the mattress on the bed and found another pouch containing drugs. The search was proper since, even though defendant was handcuffed at the time, the mattress was within her reach or immediate control.id: 18652
Visual body cavity search of prisoner following anonymous notes suggesting he was dealing drugs in the prison did not violate the Fourth Amendment.The visual body cavity search of defendant, while in prison, was reasonable and constitutional. It was conducted only after prison officials received two anonymous notes stating defendant was selling drugs in prison, the second of which said he kept drugs on his person. Given the prison's right to find and destroy drugs, the information was sufficient to justify the search. That the anonymous nature of the notes did not allow for an internal disciplinary action was not dispositive. Finally, the search was carried out in a reasonable manner that protected defendant's sense of dignity.id: 17714
Collecting blood from a person convicted of a serious crime for inclusion in a DNA database does not violate the Fourth Amendment.Defendant argued the collection of his blood when he was a state prisoner under Penal Code section 295 for inclusion in the state's convicted offender DNA database violates the Fourth Amendment. He claimed the extraction of blood was a search requiring reasonable suspicion or a warrant, and that the state must show a special need for the procedure. However, Fourth Amendment privacy interests do not prohibit gathering information concerning identity from a person convicted of a serious crime, or of retaining that information.id: 17723
Court did not err in denying the suppression motion in the drunk driving case where the phlebotomist who drew the blood did not meet the statutory requirements. The drawing of blood in a drunk driving case by a phlebotomist who did not qualify under Vehicle Code section 23158, subd.(a) did not amount to a Fourth Amendment violation, nor did such violation support exclusion of the blood test evidence under either the California or federal constitutions. As to proof of the manner of drawing the blood, the record showed the draw was made by a person trained in venipuncture and done in the same manner as blood is regularly drawn in ordinary blood tests. It was therefore drawn in a medically approved manner within the meaning of Schmerber v. California (1966) 384 U.S. 757. Finally, introducing the test results did not result in a violation of due process.id: 17591
Law permitting compelled DNA samples of certain prisoners is not unconstitutional as applied to death row inmates. Death row inmates argued Penal Code section 295 et seq., which requires DNA samples for persons convicted of specified crimes, violated the constitutional prohibition against unreasonable searches because the primary justification for the law - deterrence of future crimes - was inapplicable to them. While deterrence and crime prevention is one purpose of the law, it was also implemented to help solve crimes. Moreover, the inmates' argument was based upon the false premise that a person confined pursuant to a sentence of death is thereby incapable of future criminality.id: 16800
CHP officer did not violate the Fourth Amendment by requiring defendant to take a blood alcohol test after defendant frustrated the officer's attempt to conduct a breath analyzer test.The evidence showed the officer terminated defendant's breath test after defendant failed to follow the officer's instructions by not sealing his lips around the tube. Defendant was blowing air out the side of his mouth and not into the machine. This happened several times and the machine did not record a valid blood alcohol content reading. Thereafter, the officer did not violate the Fourth Amendment by requiring defendant to take a blood alcohol test at a hospital.id: 16693
Police properly searched minor's backpack as incident to his truancy arrest.The search of the minor's backpack worn at the time of his arrest for truancy under Education Code section 48264 was lawful because it was incident to his arrest.id: 15646
Trial court did not err in refusing to order a third party to undergo a blood test where such test results would only lead to inconclusive evidence.Defendant argued the trial court erred in refusing to order that blood be drawn from a third party for use in a blood test. However, the circumstances fail to establish probable cause to believe that the test would uncover material evidence since the bloodstains recovered at the crime scene were consistent with the blood of about half the general population and the testing would only show whether the witness fell within that half.id: 15647
Weapon was properly discovered and seized incident to defendant's arrest where he was being removed from the cramped quarters, one roommate was present but not under police control and the other roommate was missing.When discovered, the sawed-off shotgun was within the immediate area of the still-being-removed arrestee, there was a female present who was not previously known to the officers and there was another male roommate somewhere nearby whose presence away from the immediate premises had not yet been confirmed. The warrantless seizure of the weapon a few minutes later while the premises were still under the lawful control of the officers was similarly lawful.id: 15648
Officer properly searched the tote bag found in the back seat of defendant's impounded car.Officer stopped defendant for a traffic violation. Defendant said he was not the registered owner of the car, the tote bag in the back seat was his, 3and made statements about his travels the officer knew to be false. The officer could properly impound the car when he discovered defendant had no driver's license. The tote bag was in the car when it was impounded and therefore subject to the departmental policy that all closed containers must be inventories prior to being released. The search of the tote bag was a valid inventory search pursuant to departmental policy and the motion to suppress should have been denied.id: 11162
Officer's conduct in grabbing defendant's chin and prying his mouth open with a pen to dislodge an object was not constitutionally unreasonable.Defendant argued the force used by officers to eject a two-inch wad of masking tape from his mouth was unreasonable. Officers had a warrant to search his person. Defendant refused to open his tightly closed mouth. Officers grabbed his chin applying force to his neck, attempted to pry his mouth open with a pen and slapped him on the back in an attempt to dislodge the object from his mouth. Under the circumstances the officers' actions were minimally intrusive and reasonably necessary.id: 11163
Police, in holding defendant's adams' apple used only the force necessary to prevent him from swallowing the drugs.Defendant argued the police used unreasonable force to prevent him from swallowing the cocaine bindles where they prevented his Adam's apple from going up and down. However, the police did not choke defendant and even though he received a bloody nose, the police only used that force necessary to prevent him from swallowing the drugs.id: 11164
Probable cause to arrest defendant for drug possession arose after the officer found a hide-a-key box on defendant during a pat-search and the search of the box was incident to the arrest.In the course of a pat-search following the detention of defendant who the officer suspected was dealing drugs, the officer noticed a hide-a-key box in defendant's pocket. The officer testified he had seen narcotics in a key box before and noticed the instant defendant concealing something after a hand-to-hand exchange in the area known for narcotics transactions. These factors provided probable cause to arrest the defendant and the officer was entitled to seize and open the box incident to defendant's arrest for possession of drugs.id: 11165
Search of the passenger's jacket and purse was legally justified as incident to the lawful arrest of the driver even though the officer knew the items did not belong to the driver.The driver of the detained pick-up truck behaved suspiciously as the officer approached the vehicle. The driver held a newspaper up in such a way as to screen the entire inside of the passenger compartment. A female passenger was also inside the truck and in between the two were her purse and jacket. The driver was arrested and stood outside the truck while the officer searched the purse and jacket, obviously belonging to the passenger who was not under arrest. The search of the purse and jacket was lawfulid: 11168
Search of the toiletry bag was proper where officers saw knives and a billy club while searching the truck for open containers of alcohol.Defendant was stopped for driving 65 miles per hour in a 45-mile per hour zone. When the officers noticed the odor of fresh beer they were entitled to search the truck, including the passenger compartment, for open containers of alcohol. The officers noticed knives and a billy club in plain view when looking through the passenger compartment. Once they discovered the knives, they had reason to believed their safety was in danger and were entitled to search any container in the truck for weapons. Therefore searching the duffel bag and toiletry bag was not improper.id: 11169
Seizure of blood from a drunk driver was proper based on the subsequent contemporaneous arrest.Following defendant's plea of guilty to felony drunk driving and vehicular manslaughter defendant argued that his blood was illegally seized because the seizure was not preceded by a formal arrest. However, although defendant had not been placed under arrest prior to his blood being drawn, the seizure was not unlawful simply because the arrest followed, rather than preceded it, as long as the one was substantially contemporaneous with the other.id: 11170
Supreme Court rules that no warrant is ever required to search container in car.In <i>U.S. v. Chadwick</i>, 433 U.S. 1 (1977), the Supreme Court held that a warrant was required to search a footlocker, even though it had been placed in the trunk of a car moments before the arrest. The <i>Chadwick</i> rule was extended in <i>Arkansas v. Sanders</i>, 442 U.S. 753 (1979), when the court held that a warrant was required to search a suitcase actually being <i>transported</i> in the trunk of a car. In <i>U.S. v. Ross</i>, 456 U.S. 798 (1982), the court explained that the automobile exception applied when the police had probable cause to search an <i>entire</i> vehicle but that the <i>Chadwick</i> doctrine applied when the officers had probable cause to search only a particular container in the vehicle. In a 6-3 decision written by Justice Blackmun, the Supreme Court overruled <i>Chadwick</i> and <i>Sanders</i> and held that even when the police only have probable cause to believe that a particular container contains contraband, they may search that container without a warrant if it is inside of an automobile. Justice Scalia concurred in the judgment, arguing for an even broader rule<197>that no warrant is required to search a container outside of a privately-owned building at all, whether inside <i>or </i> outside an automobile. Justices White, Stevens, and Marshall dissented.id: 11171
When defendant was arrested behind his car, a contemporaneous search of the a passenger compartment of the car was justified as a search incident to arrest.Police may search the passenger compartment of an arrestee's vehicle when the police contact and arrest the person at the rear of his vehicle a brief time after he got out of the vehicle. Such a warrantless search was incident to defendant's arrest within the meaning of <i>New York v. Belton</i>, (1981) 453 U.S. 454.id: 11172
A search warrant is not required before a visual body cavity search may be conducted.A search warrant is not required before a visual cavity search may be conducted. However, officers did violate other provisions of Penal Code section 4030 where they failed to obtain authorization from the supervising officer on duty, and touched the buttocks, which is not permissible in a visual body cavity search. Suppression of the evidence was not required after the court balanced the relatively minor intrusion against the public's strong interest in combat- ting narcotics use and the fact that the contraband was visible.id: 11153
Arrest of the driver of the car justified a search of his wife's purse even though she was not arrested.Pursuant to the arrest of an occupant of a vehicle, police may search the passenger compartment and any containers therein, including containers belonging to nonarrested individuals.id: 11154
Car search incident to defendant's arrest was proper where defendant was immediately adjacent to the car when arrested.Defendant argued the search of his automobile was not justified as incident to arrest where he was not in the car at the time of the arrest. However, the trial court found that defendant was immediately adjacent to the car when he was arrested, the car was likely to contain drugs, weapons, and the defendant's identification, and there was an on-the-scene unequivocal identification by a citizen informant of defendant as the person who tried to sell the informant drugs. Search of the car incident to defendant's arrest was proper.id: 11155
Detention and search of business owner's wife was proper where officers had probable cause to believe illegal activities were ongoing at the business and she visited the office area on separate occasions.When executing a search warrant at a business open to the public, law enforcement officers may detain those persons on the premises when the circumstances create a reasonable suspicion of a relationship between the person and place sufficient to connect the individual to the illegal activities giving rise to the warrant. The instant detention and subsequent search of appellant's purse were justified as the police had probable cause to believe illegal activities were taking place at her husband's business and appellant visited the office area of the business twice and did not go to the area where an ordinary customer would be.id: 11157
Evidence supported the implied finding of no choke hold where officers testified they applied pressure to defendant's chin but did not place an arm around his neck.Substantial evidence supported the magistrate's implicit finding that there was no choking or choke hold applied by the officers during the search. During the officer's efforts to get the wad of masking tape out of defendant's mouth they placed a hand on his chin applying pressure on his neck to prevent him from swallowing with two fingers actually on the side of the neck. Officers then attempted to pry defendant's mouth open. The officers further testified there was no choke hold.id: 11158
Full body search after lawful arrest is proper notwithstanding officer's lack of intent to incarcerate.The rule enunciated in <i>United States v. Robinson</i>, (1973) 414 U.S. 218, and <i>Gustafson v. Florida</i> (1973), 414 U.S. 260, that a defendant who is properly in custody but who is not necessarily going to be incarcerated, is subject to a full body search, now controls in California in the wake of Proposition 8. Therefore, search of youth who was properly detained before the officers drove him in was proper.id: 11159
Limited search of appellant's person to uncover contraband was proper where officers received a tip drugs were being sold from the car, a marijuana cigarette was seen in the car, and a plastic bag was protruding from appellant's pants.Appellant argued that he was arrested for marijuana possession, an offense which would have permitted him to be taken into custody only if he had failed to present evidence of his identity. He argued that because he produced his driver's license, the police exceeded the permissible scope of the search of his person. However, the officers had additional reason to believe appellant was carrying contraband. They had received a tip that someone was dealing drugs from a car of the same description and location as appellant's. Appellant drove through a stop sign when it became apparent the police were interested in him. The officers observed a partially smoked marijuana cigarette in the car and the end of a plastic bag sticking out of his waistband. The police were entitled to conduct a limited search for the purpose of uncovering the contraband.id: 11160
Magistrate is not legally required to make an express finding of whether the officers applied a choke hold during the search.Defendant argued the superior court erred in denying his suppression motion based on an implicit rather than an explicit finding by the magistrate that there was no choke hold or choking by the officers in removing the wad of masking tape from defendant's mouth. However, there is no requirement that the magistrate make an express finding on the issue of whether the officers applied a choke hold during the search.id: 11161
Taking suspected drunk driver's blood sample at the jail without his consent by a licensed clinical technologist, was constitutionally permissible.Appellant was arrested for drunk driving. At the police station, the officer requested that a licensed clinical technologist withdraw a blood sample from appellant. Without appellant's consent, but without force, the technologist took the sample using a standard procedure and materials obtained from a local hospital. The lack of appellant's consent did not make the seizure unreasonable. Moreover, withdrawal of the blood at the jail rather than the hospital was not unreasonable. Finally, the seizure was not unreasonable per se because this was an unaggravated case, that is, a simple non-injury, non-accident driving under the influence arrest.id: 10620
There is no need to put a conscious drunk driving suspect under arrest before extracting his blood.If there is probable cause to believe that a person committed driving under the influence of alcohol, the taking of such person's blood is valid regardless of whether that person is first formally placed under arrest.id: 10626
Blood sample may be taken from a suspected drunk driver where there is a probable cause for an arrest.The warrantless seizure of a blood sample from an apparently intoxicated, but conscious, driver without his consent and without a prior formal arrest was not unconstitutional. The Fourth Amendment requires only that there be probable cause to place the defendant under arrest before the sample is withdrawn in a medically approved manner.id: 10559
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850