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.