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• Pretextual Traffic Stops
• Prolonged Detentions and Traffic Stops
• Use of Police Body Cameras

Using a minor traffic offense as a pretext for making a traffic stop so that a more serious criminal offense can be investigated is lawful.  However, absent developing at least a reasonable suspicion to believe that a more serious offense is being committed, a traffic stop cannot be prolonged past the amount of time it would normally take to complete the mission of a simple traffic stop.

Defendant Ernesto Ayon was the target of an investigation spearheaded by Officer Scott Williams of the San Jose Police Department’s Metro Unit.  The Metro Unit specializes in narcotics investigations.  On June 19, 2018, at about 9:00 p.m., Officer Williams (in plain clothes) and other officers were following defendant as he drove down West Taylor Street in San Jose.  The officers were watching for a traffic violation that would justify a “pretextual traffic stop.”  It didn’t take long.  As defendant approached the intersection of North San Pedro Street and prepared to make a right turn, he drove into the right-hand-side bicycle lane too early, traveling in the bike lane for about 50 to 70 feet before the start of the broken painted lane line that marks the point where it is legal to move over the line and closer to the curb.  And then he failed to use his turn signal until he actually reached the corner.  Both are violations of the Vehicle Code, albeit relatively minor ones.  As a result, a patrol unit effected a traffic stop within the next couple of blocks.  Body cameras from several of the officers at the scene recorded the events that followed, marking the exact time of each step of the contact, and described in excruciating detail by the Appellate Court.  But as is relevant to the issues here, it was noted that defendant’s documentation (license and registration) were obtained by the first officer to contact him.  As a warrant check was being run, defendant was approached by Officer Williams (who before contacting him had “donned a department-approved uniform.”) and another officer at about three and a half minutes into the contact.  Defendant was asked Officer Williams to step out of his car.  As he did so, defendant appeared to be nervous.  He was immediately patted down for weapons with negative results.  Officer Williams then began talking with defendant, explaining to him why he’d been stopped, describing the traffic infractions.  Officer Williams later testified that defendant was sweating even though it was not a “really hot night.”  The Court noted in a footnote (fn. 4), however, that the body camera failed to show any sweat on defendant.  At the four minute and 20 second mark into the stop, Officer Williams asked defendant if they could “take a quick look” into his car.  Defendant responded by questioning whether they had the authority to do so based upon no more than a traffic infraction.  A short legal debate resulted between defendant and Officer Williams during which defendant suggested that he just “get a ticket and get on my way.” Officer Williams later testified that defendant was “getting very hostile” and “very confrontational.”  However, Officer Williams’ body camera showed that “at no time during the stop did (defendant) act angrily, raise his voice, make any aggressive movement, or behave in any objectively hostile manner.”  At the six-minute mark, Officer Williams asked again for consent to search defendant’s car.  Upon defendant declining once more, he was immediately handcuffed. Officer Williams told defendant that the handcuffing was “for my safety because of the way you’re acting,” and “because you’re being very aggressive;” accusations not supported by any body camera evidence.  At about eight minutes into the traffic stop, Officer Williams asked over his radio for the assistance of a “narco dog.” Officer Diep, the narcotics dog’s handler, testified later that he had been informed in advance of defendant’s detention that his presence would be required.  As they waited for Officer Diep’s arrival, Officer Williams began questioning defendant about whether he had been using drugs.  Defendant denied any such drug use. Officer Williams conducted two quick tests, examining defendant’s eyes with a flashlight and checking his pulse, completing both of them at the nine minute and 45 second mark.  Officer Williams later testified that he was “concerned” because defendant kept opening his eyes despite being told to keep them closed for approximately 30 seconds.  The Court noted in a footnote (fn. 6) that this did not occur; i.e., that defendant kept his eyes closed as instructed.   For the next three minutes, Officer Williams continued to talk with defendant, telling him that he (the officer) suspected he (defendant) was under the influence of drugs because he was “acting strange.” Officer Williams continued talking to defendant, explaining to him at length his reasons for the traffic stop and the procedures that police follow during a traffic stop.  Officer Diep and his narcotics dog finally arrived at the scene some 12 minutes and 45 seconds into the stop.  After briefing Officer Diep about the situation, Officer Williams asked him to “just run the dog by the car real quick.”  It was now 13 minutes into the stop.  At the 14-minute mark, Officer Williams made a request over the police radio to run defendant’s name “statewide for any convictions.”  The dog sniff continued until about 18 minutes and 45 seconds into the stop, after which (at 19 minutes) Officer Diep told Officer Williams that the dog had alerted at the rear passenger area on the driver’s side.  Officer Williams shut off his body cam at this point and began searching defendant’s car.  As he did so, another officer at the scene—Officer Burnett—explained to defendant how pretext stops worked, telling him that as a member of the department’s Metro Unit: “I generally don't make traffic stops to give tickets. I don’t. That's not my intent. That’s not why I'm making the stop. My intent is to make traffic stops, is to, and then in turn prevent crime from happening. Which is, i.e., guns, gangs, narcotics. I mean, warrants, parolee, probation, making sure they're doing all their things right.”  (Why Officer Burnett felt it necessary to give defendant a free education on the theory of pretextual stops is unknown.)   The search of defendant’s car resulted in the discovery of $6,200 hidden in a compartment under the driver’s side of the dashboard.  A secret compartment under the back seat was also found, but couldn’t be opened.  So the car was impounded with the secret compartment later being forced open.  Inside this compartment, officers discovered some 1,132 grams of cocaine, 73.5 grams of methamphetamine, and another $10,000 in currency.  No warrants were ever obtained.  Once the search was initiated, Officer Williams never did anything further to investigate whether defendant was in fact under the influence of a controlled substance.  No blood or urine test was ever conducted.  Defendant was charged in state court with a pile of drug possession-related offenses.  Prior to trial, his motion to suppress the evidence obtained from his car was denied.  Defendant pled guilty to all charges and was sentenced to a year in county jail and five years of probation.  Defendant appealed.

The Sixth District Court of Appeal reversed.  The primary issue on appeal was whether defendant’s detention was unlawfully prolonged beyond the time it should have taken the officers to complete the “mission” of a stop based upon an observed traffic violation.  In this case, it is clear that the officers did not have the necessary reasonable suspicion to believe that defendant was engaging in a narcotics-related offense sufficieint to justify a detention.  They therefor instead chose to base a detention on an observed traffic violation.  Such a detention is commonly referred to as a “pretextual (or ‘pretext’) stop,” and has been held by the U.S. Supreme Court to be lawful.  (Whren v. United States (1996) 517 U.S. 806.) Pursuant to Whren, when conducting a pretext stop, an officer’s subjective intentions are irrelevant to the lawfulness of the detention.  In other words, the fact that the officers stopped defendant in this case solely because they were interested in discovering evidence of some illegal drug activity is irrelevant so long as they had some legal cause justifying the detention. Defendant’s observed traffic offenses supplied the necessary legal basis for defendant’s detention in this case.  However, absent developing at least a reasonable suspicion to believe that defendant was violating some other law (i.e., a drug offense in this case), the officers are limited to holding onto defendant only as long was it would normally take to complete the “mission” of a traffic stop.  The law is well settled on this issue: 

“Because the traffic violation is the purpose of the stop, the stop ‘may “last no longer than is necessary to effectuate th[at] purpose.” [Citation.]’ ‘[T]he 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. United States (2015) 575 U.S. 348, 354.) “‘Beyond determining whether to issue a traffic ticket, an officer’s mission includes “ordinary inquiries incident to [the traffic] stop.” [Citation.] Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. . . .’ (Id. at p. 355.)”

Although there is no specific time limit for a traffic offense-based detention, other case law not cited in this decision has indicated that for the average traffic stop, about 10 minutes is sufficient. (See People v. Carter (2005) 36 Cal.4th 1114, 1139-1142.)  It is also a rule, however, that while acting within the allotted time necessary to conduct a traffic stop, should the officers develop a reasonable suspicion that the person stopped is engaging in some other criminal offense, the detention may be prolonged for a reasonable amount of time in order to investigate these newly developed suspicions.  In this case, defendant was stopped for traffic violations only, although the officers were looking to develop enough evidence of a narcotics offense in order to justify holding onto him longer.  The issue here is whether they held him too long before the necessary reasonable suspicion of a narcotics offense was developed.  It wasn’t until the narcotics dog alerted on defendant’s vehicle that the officers had a reasonable suspicion (or, in actuality, full probable cause) to believe defendant was engaging in some other criminal offense.  The time expended between the traffic stop and the dog alert, as determined by the officers’ body cams. was some 18 minutes and 45 seconds.  This, the Court found, was excessive and a violation of the Fourth Amendment.  Defendant should have been released at least 8 minutes earlier.  The Court rejected the Attorney General’s attempts on appeal to justify the excessive time between the initial traffic stop and the development of the necessary reasonable suspicion to believe defendant was committing a narcotics offense by defendant’s alleged hostile attitude and lack of cooperation.  This argument didn’t fly because despite Officer Williams’ attempts to portray defendant as uncooperative and perhaps under the influence, the body camera footage did not support such a claim.  Because the narcotics dog’s alert on defendant’s vehicle—providing the necessary evidence to support the lawful extension of the detention beyond the time it would have reasonably taken to complete the mission of the traffic stop—did not occur until after that point in time when defendant should have been released, the discovery of the evidence of an on-going drug offense should have been suppressed.  The Court therefore reversed the trial court’s judgment and remanded the case for the purpose of granting defendant’s motion to suppress the resulting evidence.

Despite the Court’s concession that “pretextual traffic stops do not violate the Fourth Amendment” (citing Whren), it is apparent that this particular set of appellate court justices are not hot on this concept.  The Court cites comments made by the officers (See Officer Burnett’s comments to defendant Ernesto Ayon about never intending to write him a ticket, as related above), reflecting these justices’ apparent opinion that pretext stops are something to be discouraged.  The Court in fact specifically held that in this case; “(t)he existence of a preexisting drug investigation is nonetheless relevant here.”  The apparent relevance relates to Officer Williams’ credibility as it concerns his reasons for attempting to draw out the stop beyond the time it should have taken to complete the mission of a simple traffic stop.  Specifically, the Court commented on Officer Williams’ assertions concerning defendant’s lack of cooperation and overt hostility, as well as his alleged (but never proven) drug influence, as excuses to prolong the detention and initiate a narcotics investigation.  As noted by the Court, such assertions were not supported by what was depicted by the body camera footage that the defense attorney so appropriately got entered into evidence. Indeed, the whole idea of pretextual traffic stops appears to be under siege despite the Supreme Court’s stamp of approval on the concept.  For instance, it has been alleged by some agencies (the Los Angeles Police Commission, specifically) that pretextual traffic stops are being used as a vehicle to target racial minorities.  As a result, the LAPD has developed a policy (effective March 1, 2022) whereby pretextual stops are allowed only if an officer has “articulable information . . .  regarding a serious crime” before conducting a pretextual traffic stop.  This policy does not explicitly define the type or amount of information an officer must have to justify a stop, but does indicate that LAPD officers must be able to point to specific information related to a criminal offense of some type, known to exist before the stop is made.  Mere speculation that the target of the stop looks like a crook (or, more importantly, is a member of some racial or ethnic minority) is not enough. But setting aside for the moment the issue of whether or not pretextual stops are used as a tool to racially discriminate, LAPD’s policy on this issue is indicative of a mounting trend to sidestep the rule of Whren v. United States and someday, perhaps, make pretextual traffic stops illegal altogether.

• Coerced Confessions and Offers of Leniency
• Offers of Leniency and the Fifth Amendment Self-Incrimination and Due Process Clauses

An offer of leniency—actual or implied—made to a criminal suspect is a form of “coercion” that may result in the suppression of any resulting incriminating statements.  What is, and is not, an offer of leniency depends upon the circumstances.

Defendant Anthony Scott Zabelle and another unidentified person assaulted a man referred to only as “Scott” in an attempt to retrieve money allegedly owed by Scott.  In the assault, apparently documented on a surveillance camera from somewhere, defendant came up behind Scott in an alley way and hit him over the head with a glass bottle.  Upon Scott falling to the ground, defendant “stomped on his head.”  Defendant and his unnamed accomplice then rifled through the unconscious Scott’s pockets, taking some personal belongs (a pipe and a knife) and his wallet containing about $100.  Police found the still unconscious Scott in the alley with a two-inch laceration to the back of his head.  The officers tracked defendant down to a nearby motel and took him into custody.  Defendant was read his Miranda rights which he acknowledged understanding.  He immediately denied culpability (“I didn’t rob nobody”).  One or more of the officers questioned defendant (in a very disjointed interrogation), commenting at the beginning of the interrogation that; “[t]here is a very critical time where you can earn possibly some consideration.”  A few minutes later in the questioning, the officer told defendant: “You know we can’t make any guarantees but sometimes being honest and up front, admitting your involvement and—and what you did can go a ways to showing your remorse and . . . (s)ometimes that works in your favor. Sometimes it doesn’t.”  Defendant immediately thereafter admitted that blood on his shoes was “probably” Scott’s.  This was followed up with a somewhat disjointed confession.  Defendant’s confession (such as it was) was used against him at trial.  He was convicted of second degree robbery (P.C. § 211). The jury also found true the allegation that defendant inflicted great bodily injury on Scott during the commission of the robbery (P.C. § 12022.7(a)). The trial court sentenced defendant to eight years in prison and he appealed.

The Third District Court of Appeal affirmed (except to remand for resentencing).  The primary issue on appeal was whether defendant’s confession had been “coerced,” as the product of an offer of leniency.  The alleged offer of leniency was in the form of the interrogating officer’s implied promises that he would receive consideration in sentencing if he admitted to the robbery.  The general rules on this issue are well settled:  Coerced confessions violate the Fifth Amendment’s privilege against compulsory self-incrimination and the guarantee of due process.  (Withrow v. Williams (1993) 507 U.S. 680, 688.)  As such, a resulting confession is inadmissible in trial.  “This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.” (Rogers v. Richmond (1961) 365 U.S. 534, 540–541.)  A confession is considered to be “coerced” if it is the product of an interrogating officer’s promise—express or implied—to the defendant that he can expect some form of leniency in exchange for a confession.  But it takes more than “mere advice or exhortation by the police that it would be better for the accused to tell the truth” when such advice is unaccompanied by either a threat or a promise.  Pointing out to a suspect the benefits which naturally flow “from a truthful and honest course of conduct” does not make the suspect’s resulting statements involuntary.  It only becomes a problem when “the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, . . .”  (People v. Holloway (2004) 33 Cal.4th 96, 115.)  In this case, two statements by the interrogating officer were in issue.  As for the first statement (“[T]here is a very critical time where you can earn possibly some consideration.”), the Court considered it to be too vague, under the circumstances, to be considered a promise of anything.  At the most, this statement can only be considered a case of the officer simply informing the defendant that his full cooperation “could possibly” be beneficial in some unspecified way.  This, the Court concluded, “is not enough to show improper coercion under case precedent.”  As for the second contested statement (“You know we can’t make any guarantees but sometimes being honest and up front, admitting your involvement and—and what you did can go a ways to showing your remorse and . . . (s)ometimes that works in your favor. Sometimes it doesn’t.”), the Court found it not to be an offer of leniency in any sense, noting that “‘[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,’ the subsequent statement will not be considered involuntarily made.’” (Holloway, supra, at p. 115.) This statement amounted to no more than the officer truthfully telling defendant that a suspect’s cooperation sometimes works to his benefit, and sometimes it does not (the Court noting Cal. Rules of Court, rule 4.423(b)(8), where it is specified that an early admission of guilt is a factor to be considered by a sentencing court in mitigation).  The Court found “nothing unduly coercive in this comment.”  Defendant’s conviction was therefore affirmed (except for remanding the case back to the trial court to correct a sentencing error).

The bottom line here is that police officers have no right to be plea bargaining with a criminal suspect.  Only a prosecutor, with the approval of the court, has the legal authority to plea bargain.  (See Pen. Code §§ 1192.1 et seq.)  Offers of leniency are a form of plea bargaining, in effect.  Unfortunately, the misconception that it is a good interrogation tactic for officers to engage in plea bargaining with an in-custody suspect, suggesting that he or she can get a deal by cooperating, is promulgated by the multitude of police shows on television where this rule is consistently violated.  If an officer feels the need to work out a plea deal with a suspect, the local prosecutor must be involved.  Offers of leniency made by interrogating officers is a reoccurring problem.  In this case, the officer’s first comment to the defendant (i.e.: “[T]here is a very critical time where you can earn possibly some consideration.”) comes dangerously close, in my never-to-be-so humble opinion.  Had it been expounded upon, rather than simply ignored by the defendant, then—assuming defendant’s subsequent confession had been admitted into evidence—it could have resulted in a reversal of this conviction.  By the same token, as indicated above, the case law is clear that merely commenting on the benefits that “naturally (flow) from a truthful and honest course of conduct,” such as “you’ll feel better,” does not constitute an offer of leniency.  The bottom line is that when interrogating a suspect, an officer has to remain vigilant not to say anything that can later be interpreted—even impliedly—as an offer of a lighter sentence or some other benefit.

• Search Warrants and Probable Cause
• Material Omissions in a Warrant Affidavit
• Stale Information in a Warrant Affidavit

The standard for a magistrate to issue a search warrant is finding that the warrant affidavit shows a “fair probability” that police will find contraband or evidence of a crime at a particular place.  The reviewing court’s duty, on the other hand, is simply to ensure the magistrate had a “substantial basis” for that conclusion.  Information in a warrant affidavit is not stale if tied by reoccurring events to the current search.  If so tied to the current search, the fact that a suspect’s prior convictions are not dated in the affidavit is irrelevant.

The following was included in a search warrant affidavit asking for permission to search defendant Robert Andrew Delgado’s house:  Defendant is a documented member of the Highland Park Criminal Street Gang in Los Angeles, where he is known by his gang moniker of “Loco.” His residence, located at 510 Toledo Street, is used as a gang “hangout,” where gang members can be found on a regular basis.  Defendant‘s criminal history includes four prior felony convictions; i.e., gang member with a gun, assault with a deadly weapon, carjacking, and possession of a controlled substance for sale (no dates are given).  In addition to extracting “taxes” from businesses, the Highland Park gang is known to have engaged in assaults, robberies, and murders; all used as a means of intimidation so that it can freely sell illegal guns and drugs without fear that others might report them to the police. 

On July 5, 2019, police officers were surveilling defendant’s residence.  This surveillance was prompted by the fact that crime attributed to the Highland Park gang had recently increased and the officers knew that many of the gang members would be hanging out there.  At about 7:15 p.m., the officers observed a black Lexus SUV stop in front of defendant’s residence.  Two of the vehicle’s occupants, recognized as Rodrigo Medina and Ruben Ruiz, went into the residence while the driver remained in the car.  The officers knew Ruiz to be a documented member of the Highland Park gang who was on active parole for armed robbery, and as such, was subject to search and seizure conditions.  Approximately three to five minutes after entering the residence, Medina and Ruiz were observed leaving the house and returning to the SUV.  Within a couple more minutes, defendant came out of his house and approached the SUV’s front passenger window. Defendant “leaned in close” through the window for a few seconds, and then returned to his residence.  The officers believed, based upon their training and experience, that defendant had possibly delivered narcotics and/or firearms to the occupants of the vehicle.  As the SUV drove away, officers stopped it.  Contacting the vehicle’s occupants, the driver was determined to be a gang associate while Medina and Ruiz were its passengers.  A search of the car resulted in the recovery of about $700 in cash, two illegal guns, and a half-pound of assorted drugs.  All the drugs, other than 1.49 grams of methamphetamine, were found on Medina.  The occupants of the vehicle were all arrested.  As a result of the above observations, Officer Larry Burcher sought and obtained a search warrant for the Toledo Street address.  In addition to all the facts and circumstances as described above, Officer Burcher included in his warrant application some personal information; i.e., that he had been a police officer for 28 years during which time he had conducted hundreds of investigations, and that he had been a supervising detective in charge of a gang impact team for six years.  Based upon all of the above, it was Officer Bucher’s opinion, as stated in the warrant affidavit, that defendant was supplying drugs and guns to his fellow Highland Park gang members for the purpose of furthering the gang’s criminal enterprise.  In his affidavit, Officer Burcher also asked for the magistrate’s approval “to search for cellular telephones and digital cameras that may ‘store or depict criminal street gang activity’; for ‘paraphernalia related to a criminal street gang’; and for photographs showing the residents involved in criminal gang activity.”  A magistrate determined that the warrant affidavit reflected sufficient probable cause and issued the warrant.  Upon executing the warrant, a “mobile phone” (cellphone?) was found in defendant’s residence.  The phone was found to contain videos of defendant “orchestrating nine beatings to initiate new members into the Highland Park gang.”  Defendant was arrested and charged in state court with a number of gang-related offenses.  The trial court denied defendant’s motion to suppress the evidence—including the cellphone and its contents—found during the execution of the search warrant at his house.  Defendant pled “no contest” to one count of assault by means of force likely to produce great bodily injury (P.C. § 245(a)(4)) and two counts of solicitation or recruitment of another person to participate in a criminal gang (P.C. § 186.26(a)). He also admitted gang and recruitment-of-a-minor allegations. (P.C. §§ 186.22(b)(1)(A), and 186.26(d).) (Presumably, defendant went to prison, although the Court doesn’t say.)  Defendant appealed.

The Second District Court of Appeal (Div. 8), in a split 2-to-1 decision, affirmed.  In his appeal, defendant raised two issues: (1) whether the warrant affidavit contained sufficient probable cause, and (2) whether Officer Bucher, as the affiant, omitted material facts by failing to specify the age of defendant’s prior felony convictions. 

(1) Probable Cause:  The standard for finding sufficient probable cause to support the issuance of a search warrant is well established.  As noted by the Court: “When magistrates consider a search warrant application, they must make a practical and commonsense decision about whether the affidavit shows a fair probability police will find contraband or evidence of a crime at a particular place. The reviewing court’s duty is simply to ensure the magistrate had a substantial basis for that conclusion. This standard is flexible and easy to apply.” (Italics added: Illinois v. Gates (1983) 462 U.S. 213, 238–239.) California follows this federal rule as established by the U.S. Supreme Court.  (People v. Souza (1994) 9 Cal.4th 224, 232–233.)  Defendant did not contest the legality of the car stop; only whether the illegal items recovered in the vehicle search could be tied to a conclusion that more such contraband would be found in defendant’s home.  A majority of the Court ruled that it could.  What we have here is a police officer with extensive training and experience in gang-related activities, observing defendant—who lived at a residence that was known to be a place where gangsters who trafficked in illegal guns and drugs often hung out—huddling with the occupants of a vehicle in which guns and dope are found immediately thereafter in a lawful search of that vehicle.  Based upon these observations, when coupled with the officer’s prior knowledge of defendant and his gang-related activity, the officer reasonably concluded that what he had observed was consistent with defendant bringing guns and/or drugs from his residence and giving it to the occupants of that vehicle.  This was sufficient for the officer (and the magistrate) to conclude that there was at the very least a “fair probability” that more guns and dope would be found in defendant’s house.  It was also reasonable to conclude that there was a fair probability that cellphone video evidence, depicting defendant’s gang-related activity, might also be found in the house. As summarized by the Court: “Together with the gang’s surge in criminality and the locale’s status as a busy gang hangout, there was probable cause to search it for guns, drugs, and other evidence of gang-related crime.”  In so concluding, the Court rejected defendant’s argument that because Officer Burcher could not actually see defendant give anything to the occupants of the vehicle, it was more probable that the guns and drugs recovered from the vehicle were already there.  The Court found that this argument did not make sense.  Per the Court: “The brevity and the waiting car suggested an in-person task. The guns and drugs (soon thereafter being found in the car) suggested what that task had been.”  After rejecting several other possible, but unlikely scenarios suggested by defense counsel (i.e., the vehicle’s occupants only wanted to check to see if defendant had contracted COVID-19, or that they were there to plan a drive-by shooting), the Court found that sufficient probable cause existed to believe that evidence of defendant’s drug, gun, and general gang-related activity would be found at the house to support the issuance of the search warrant. 

(2) Staleness of Defendant’s Prior Convictions:  In his affidavit, Officer Burcher listed four prior felony convictions sustained by defendant.  The dates these convictions occurred were not specified.  Defendant argued that by failing to include the dates of these convictions in the affidavit, Officer Burcher had omitted material information.  Also, upon noting the actual dates of the convictions (1999, 2003, 2008, and 2012), defendant argued that Officer Burcher intentionally failed to list the dates in order to conceal the staleness of the warrant’s information.  The Court rejected this argument, ruling that the prior conviction information in the affidavit was not stale, at least under these circumstances.  Specifically, the affidavit included information showing that four months earlier, a traffic stop refreshed police knowledge of defendant’s continuing membership in the Highland Park gang.  His gang had been criminally active in the most recent six months.  Defendant lived at a gang hangout where gang members continued to congregate up to the events reflected in this case, which is why police were watching when Medina and Ruiz showed up at defendant’s house. As such, “(f)resh events prompted the search warrant. Given defendant’s continuing gang-related activity, “(w)hether (defendant’s) convictions were old or new was immaterial.”  (Italics in original.)

It’s not stated in the written decision, but the importance of not losing the cellphone and its video contents in a motion to suppress, if you didn’t catch it, was that the videos of defendant engaging in the acts of “orchestrating nine beatings to initiate new members into the Highland Park gang” was the basis for the charged offenses he eventually pled to; i.e., assault by means of force likely to produce great bodily injury, per P.C. § 245(a)(4), solicitation or recruitment of another person to participate in a criminal gang, per P.C. § 186.26(a), and the recruitment-of-a-minor allegations, per  P.C. §§ 186.22(b)(1)(A), and 186.26(d).  So the prosecution needed to save the warrant to preserve these charges and allegations.  Despite the dissenting Justice arguing that there was insufficient probable cause described in the warrant affidavit, this case is really a no-brainer.  Although they don’t describe everything that went into the affidavit, it appears that Officer Burcher included a whole bunch of stuff reflecting defendant’s continuing gang-related activity, and the connection his residence had to this activity.  I’ve always been an advocate of the rule that you can’t put too much into a warrant affidavit.  We only get negative court decisions when we leave things out; not when we’ve put too much into an affidavit.  Had Officer Burcher simply included the dates of defendant’s prior convictions, there would have been no issue left to argue.  But otherwise, good job here by Officer Burcher.