• Warrantless Vehicle Searches and the Automobile Exception
• Seizure of Relevant Evidence in Plain Sight
• Searches of Cellphones, With and Without a Search Warrant
• Miranda and the Questioning of an In-Custody Suspect
• Interrogation vs. Questioning

The “Automobile Exception” being one of the recognized exceptions to the search warrant requirement, a search of a vehicle without a warrant is lawful whenever there is probable cause to believe a vehicle contains evidence of criminal activity or contraband.  It is reasonable to expect that incriminating information will be found in a cellphone seized from a vehicle at the scene of a recent crime. A 15-day delay between seizure of a cellphone and searching it with a warrant is not unreasonable where the defendant neither demanded the return of his cellphone nor alleged any prejudice due to the delay.  A search warrant for a cellphone will be upheld despite inclusion in the warrant of illegally seized information so long as probable cause continues to exist after excising the illegally obtained information and the evidence supports a finding that the police subjectively would have sought the warrant even without the illegal conduct.  Questioning of an in-custody suspect under circumstances where the police are reasonably unaware that defendant’s responses might elicit incriminating information is not an interrogation and does not require a Miranda admonishment or waiver.

In April, 2015, defendant Jamell Tousant’s son (Tousant, Jr.) was shot and killed in a gang related ambush, in the City of Oakland. The motive for Tousant Jr.’s murder was because he refused to return a neck chain he was alleged to have stolen from a Five Finga Mafia street gang member.  On the evening of the shooting, an  “upset and agitated” defendant was observed standing outside the hospital where his dying son was being treated, loudly cursing the world in general and the police in particular, while holding a long-barreled shotgun and an ammunition belt with shotgun rounds.  Oakland Police Sergeant Leonel G. Sanchez later contacted defendant, seeking information from him about his son’s murder, asking him to contact him if he discovered or received any helpful information.  Sgt. Sanchez also cautioned defendant not to take matters “into his own hands;” advice that was totally ignored.  Through his own investigation, defendant was able to determine that Five Finga Mafia member Nigel Blackwell was his son’s likely killer.

(1) The Berkeley Shooting:  On August 15th, four individuals (presumably Five Finga Mafia gang members) were standing outside 2806 Mabel Street—a house in Berkeley—at approximately 6:30 p.m., when a white four-door vehicle pulled up in front of the house.  A passenger in the car fired 10 to 15 rounds at the four men, wounding one of them.  As the four men fled on foot, the driver got out of the car and fired 5 to 10 more shots at one of them.  A witness was able to get the vehicle’s license plate number, resulting it being determined that the car belonged to defendant.  Other evidence (such as shell casings and defendant’s later discovered cellphone records and text messages; see below) all led to the conclusion that defendant was one of the shooters. 

(2) The Oakland Shooting: Five days later (Aug. 20th), before defendant had been contacted concerning the above shooting, Bruce McMahan was backing his car out of his driveway at 1312 105th Avenue, in Oakland, when someone jumped out from behind a car parked on the street and started shooting at him, bullets hitting the victim’s car, but missing him.  As McMahan quickly reversed his car, he saw a second man standing across the street.  Both individuals got into a white four-door vehicle and drove away.  Shell casing, unfired rounds, and a loaded semiautomatic handgun magazine, were later recovered at the scene by police.  But more importantly, a rented Chevrolet Camaro was found parked in a “haphazard way” across the street, partially blocking a driveway, and in close proximity to the recovered ammunition and shell casings.  The car was unlocked and the keys were in the ignition.  A neighbor told police he did not recognize the Camaro as belonging in that neighborhood and that it had not been there several hours earlier.  Believing that the Camaro might be associated with this shooting, the police conducted a warrantless search of the car and found, among other items, a rental agreement in defendant’s name and—in plain sight on the center console—a cellphone later determined to belong to defendant. 

(3) The Investigation: When the cellphone was later searched via a search warrant, it was discovered that one of defendant’s contacts had sent him a message about the 1314 105th Avenue address (in Oakland), and claiming that that address belonged to “Nigel” (i.e., Nigel Blackwell), who defendant believed killed his son.  Upon reviewing the Internet search history on defendant’s cellphone, it was also discovered that defendant had looked up the 105th Avenue address some five hours before the shooting.  Other incriminating messages were found in the phone as well.  On August 31st, eleven days after the Oakland shooting, defendant and two other people were observed sitting in a white Chevrolet Impala by an Oakland police officer.  In checking the license plate, it was discovered that the Berkeley Police were seeking this car in relation to an unspecified crime (no doubt the Berkeley shooting, described above).  With defendant and the other passengers detained, Berkeley police responded to the scene and conducted a warrantless search of the car.  This search resulted in the recovery of a loaded 9-millimeter handgun and a shell casing of the same caliber bullet found at the Berkeley shooting.  Defendant was arrested on an illegal firearm charge and booked into custody in Berkeley.  While in custody, defendant was questioned by Oakland Police Sergeant Sanchez who—without advising him of his Miranda rights—asked him what, if anything, he had discovered in relation to his son’s murder (see “The Questioning of Defendant,” below).  Later charged in state court with numerous offenses, defendant’s motions to suppress the evidence found in the rented Camaro (his cellphone and other evidence), plus his statements made to Sgt. Sanchez, were denied.  Convicted on all counts and sentenced to 22 years in prison, defendant appealed.

The First District Court of Appeal (Div. 2) affirmed.  Among the issues raised by defendant on appeal were (1) the legality of the warrantless search of the rented Chevrolet Camaro, (2) the search of his cellphone found in that car, and (3) his “interrogation” by Sgt. Sanchez, conducted without a Miranda warning or waiver. 

(1) Search of the Rented Camaro:  The rented Chevrolet Camaro left at the scene of the Oakland shooting was searched without a warrant, resulting in the recovery of a rental agreement and a cellphone, all of which led to the conclusion that defendant was at the scene of the Oakland shooting.  Defendant argued that this warrantless search violated his Fourth Amendment rights and that the products of this search should have been suppressed.  The Court disagreed.  Although warrantless searches are presumed to be unlawful, one of the recognized “specifically established and well-delineated” exceptions is the search of a vehicle.  Under what is sometimes referred to as the “Automobile Exception,” law enforcement may lawfully conduct a warrantless search of any area of a vehicle in which there is probable cause to believe it contains evidence of criminal activity or contraband. (People v. Lopez (2019) 8 Cal.5th 353, 372.)  The justifications behind the Automobile Exception include the fact that vehicles are mobile—they may be moved or tampered with while a warrant is sought—and that there is a lesser expectation of privacy in a vehicle.  It is irrelevant whether the vehicle in issue is found parked, or stopped by police on a highway.  In this particular case, the Court held that the officers at the scene of the Oakland shooting had sufficient probable cause to believe the Camaro might contain evidence relevant to that shooting.  For instance, it was parked in a haphazard way, across the street from where the victim was shot at, and in close proximity to discarded shell casings and ammunition on the ground.  Also, a neighbor indicated that he did not recognize the vehicle as belonging in that neighborhood and that it was not there several hours earlier. Based upon this, the Court held that “law enforcement could reasonably conclude the Camaro was connected to the shooting and might contain evidence relevant to the crime.” 

(2a) Seizure of Defendant’s Cellphone:  A cellphone, later determined to belong to defendant, was seized from the Chevrolet Camaro.  Defendant argued on appeal that its seizure from the Camaro was illegal in that “cell phones are not inherently illegal items (and) the cell phone lacked any nexus with suspected criminal activity.”  The Court rejected this argument, noting that “it is reasonable to expect that incriminating information will be found on a phone regardless of when the crime occurred.” (Quoting Riley v. California (2014) 573 U.S. 373, 399.) Given the cellphone’s obvious relevance in determining who the shooter might have been, the cellphone in this case—observed in plain sight on the vehicle’s center console—was lawfully seized, there being (at the very least) sufficient probable cause to justify its seizure. 

(2b) Searches of Defendant’s Cellphone:  On the issue of the searches of the cellphone, it was noted that on September 2nd (almost two weeks after the Oakland shooting), Oakland P.D. Officer Lorena Arreola—who had been assigned to investigate the Oakland shooting—turned on the cellphone before getting a search warrant.  This was for the purpose of identifying its phone number.  She was able to locate the number through the “Settings” folder in the phone.  Using a computer program, she was then able to identify defendant as the person who had that phone number.  After accomplishing this, she also checked the photographs in the phone, finding a picture of defendant’s driver’s license.  She used this information to supplement her probable cause for the issuance of a search warrant for the rest of the phone.  A warrant was finally issued on September 4th, authorizing Officer Arreola to download the cellphone’s contents, including defendant’s photos, Internet search history, and text messages.  This included texts connecting defendant to the 1314 105th Avenue address in Oakland and information related to this being Nigel Blackwell’s residence.  Defendant first complained that waiting 15 days after the seizure of his cellphone before obtaining a search warrant was unreasonably long, and that the information recovered from his phone should be suppressed for that reason.  There is actual case authority noting that an unreasonably prolonged detention of one’s property may be a Fourth Amendment issue.  (E.g., see United States v. Sullivan (9th Cir. 2015) 797 F.3rd 623, 633.)  However, it is also recognized that “(t)he interest in protecting ‘incriminating evidence from removal or destruction can supersede, at least for a limited period, a person’s possessory interest in property, provided that there is probable cause to believe that that property is associated with criminal activity.’”  (Segura v. United States (1984) 468 U.S. 796, 808.)  In this case, defendant neither demanded the return of his cellphone, nor did he allege any prejudice he might have suffered by the 15-day delay in obtaining a search warrant. For these reasons, the Court held that holding onto defendant’s phone for 15 days was reasonable, and not grounds for the suppression of any evidence.  As for the initial search of the phone, done before obtaining a search warrant, the People conceded (and the Court agreed) that this search was illegal.  The U.S. Supreme Court has ruled that “officers may not engage in a warrantless search of ‘those areas of the phone where an officer reasonably believes that information relevant to . . . the arrestee’s identity’ may be discovered.” (Quoting Riley v. California, supra.) Conceding that Officer Arreola’s initial search of the cellphone, before the warrant was obtained, was illegal, the issue becomes one of determining whether the subsequent search warrant can still be saved.  A search warrant under these circumstances is still good if the People can prove the following: “First, the affidavit, excised of any illegally obtained information, must be sufficient to establish probable cause.” . . .  “Second, the evidence must support a finding that ‘the police subjectively would have sought the warrant even without the illegal conduct.’” (Italics in original; People v. Robinson (2012) 208 Cal.App.4th 232, 241.)  Under the facts of this case, the Court held that “(e)ven without the tainted information derived from the illegal search—the cell phone number and driver’s license information confirming (defendant’s) connection with the cell phone—(Officer) Arreola’s affidavit established probable cause to search the cell phone.”  Noting that “(p)robable cause requires only a fair probability, not a certainty,” the Court (after describing in exhausting detail the long list of incriminating evidence tying defendant to the crimes while minimizing the relatively insignificant information obtained during the illegal search of defendant’s cellphone) held here that the search warrant remained valid despite the inclusion of illegally obtained information in the warrant affidavit.

(3) The Questioning of Defendant:  After defendant’s August 31st arrest, he was questioned by Sgt. Sanchez about what he (defendant) had discovered relevant to his son’s murder. During this questioning, despite not being asked any questions relative to the shootings, defendant revealed some incriminating information that was subsequently used against him at trial.  On appeal, defendant argued that this information should have been suppressed in that Sgt. Sanchez failed to advise defendant of his Miranda rights.  The Court disagreed.  There are three prerequisites to the necessity of a Miranda admonishment and waiver; (1) an interrogation, (2) by law enforcement (or an agent of law enforcement), (3) while the suspect is in custody.  Here, Sgt. Sanchez was obviously a law enforcement officer, and defendant was certainly in custody.  However, as the Court noted, not all questioning by law enforcement constitutes an interrogation. An “interrogation” is defined as the questioning of an in-custody suspect under circumstances where the “police should know (is) reasonably likely to elicit an incriminating response from the suspect.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300–302.)  The test is an objective one (i.e., how a reasonable officer, under the circumstances, would have perceived the situation), requiring the courts to “analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police, and all other relevant circumstances.” (People v. Morse (1969) 70 Cal.2nd 711, 722.)  In this case, Sgt. Sanchez was not even aware of the crimes for which defendant was ultimately prosecuted, let alone know that defendant might be incriminating himself by his responses.  As such, defendant was not “interrogated,” as the term is legally defined.  Under these circumstances, a Miranda admonishment and waiver was unnecessary.

The law on these issues is pretty much straightforward, and contains no real surprises.  It is interesting to note, however, that the People also had an argument to the effect that defendant abandoned the Chevrolet Camaro at the scene of the Oakland shooting, thus losing any constitutional standing to challenge its search.  Because the warrantless search of the Camaro was so obviously lawful, the Court decided that it need not delve into that issue.  Just know that that was also an argument that probably would have justified the warrantless search of the Camaro.