LEGALUPDATES.COM

• Civil liability and the doctrine of qualified immunity 
• Detentions for investigation 
• Use of force in executing a detention 

A police officer’s use of his or her firearm and handcuffs in the detention of a person suspected of preparing to commit a dangerous felony isn’t necessarily unconstitutional.  

An officer’s reasonable suspicion that “criminal activity is afoot” allows that officer to conduct a temporary detention for investigation. A reasonable suspicion that the suspected criminal activity might be a dangerous felony (e.g., a robbery) allows the detaining officer to use reasonable force in conducting a detention. Such force may include the use of firearms and handcuffs. The prior case authority for these rules is sufficiently vague to allow for the qualified immunity in a subsequent lawsuit alleging that officers illegally detained a plaintiff and used excessive force in doing so.  

Gilbert, Az., Detective Jason Alexander stopped at a gas station/convenience store on Jan. 25, 2018, for something to drink. While sitting in his unmarked police vehicle, he noticed an individual (later identified as Tommy Jones) in a vehicle already backed into another parking spot. Watching Jones, Alexander observed that he “cran[ed] his neck” and “nervously” looked around, repeating this behavior several times. Jones was also observed moving his car several times, each time backing into a new parking space as he “turn(ed) his body 180 degrees in the vehicle to get a good look at his surroundings.” Because Jones never got out of his car, Alexander surmised that he was not there to make a purchase at the convenience store. It also appeared to Alexander, based on his training and decade-plus of law enforcement experience, that an “abnormally nervous” Jones was scouting around for police officers, video cameras or other means by which he could be detected, and that he was trying to find a parking spot that would allow for a hasty exit.  

Alexander concluded that Jones was “casing” the gas station and that “an armed robbery was about to occur.” After watching Jones’ suspicious actions for about 15 minutes, Alexander observed another subject, later identified as the plaintiff, DeJuan Hopson, drive into the parking lot and part alongside Jones. Jones then got out of his car and into Hopson’s. As Alexander watched, Jones and Hopson conversed while appearing to exchange unknown items. At one point, Jones went back to his car to retrieve something and then returned to Hopson’s. Believing that Jones and Hopson were about to embark on criminal activity (e.g., a robbery), Alexander called for backup. Detective Brandon Grissom responded, parking behind Hopson’s car. Four other officers also responded.  

Accepting Hopson’s version of the facts as true (as an appellate court must do at this stage of an appeal), the court described how Alexander – in plain clothes and with his gun drawn –  approached Hopson sitting in the driver’s seat of his car and opened the door, “forcefully remov(ing)” Hopson from the vehicle. Alexander yanked on Hopson’s left arm with “enough force to put [him] in a state of shock and make [him] think that [he] was being robbed.” Alexander then “forcefully” handcuffed Hopson while “verbally dar[ing]” him to make a move. Per Hopson’s account, Alexander never announced that he was a police officer. Grissom stood nearby as he kept his gun pointed at Hopson. Another officer pulled Jones out of the passenger side of the vehicle as the other three officers stood by with their guns drawn. As a result of this experience, Hopson claimed in his subsequent lawsuit that he experienced “depression, anxiety, loss of sleep, nervous[ness], and a fear of retaliation.” 

Meanwhile, back at the scene, a records check – conducted while Hopson was being questioned about the smell of marijuana emanating from his car – resulted in the discovery that he had felony convictions for aggravated assault and several weapons-related offenses, that he was on probation for another crime, and that his driver’s license was suspended. Based on the marijuana odor coming from the car and Hopson’s inability to demonstrate that he was allowed use marijuana for medical purposes, plus the fact that he had been driving on a suspended license, the detectives undertook a search of his car. They first found marijuana and then discovered a Glock handgun with an extended magazine between the driver’s seat and the center console. Hopson was arrested for being a felon in possession of a firearm. He was later charged in Maricopa County Superior Court with the illegal possession of both marijuana and a firearm. 

Hopson filed a motion to suppress the evidence found in his car, arguing that there was insufficient justification for an investigatory stop, i.e., that he had been illegally detained. The trial court judge determined that there was insufficient reasonable suspicion to justify the detention and Hopson’s motion was granted and dismissed all charges against him (Author’s note: a questionable decision).  

More than two years later, Hopson filed a civil suit in federal court, pursuant to 42 U.S.C. § 1983, alleging that the detectives violated his Fourth (illegal search and excessive force) and Fourteenth (due process) Amendment rights. The detectives’ legal representatives responded with a motion for summary judgment, arguing that at the very least, they were entitled to “qualified immunity” from civil liability. The federal district (trial) court ruled that the detectives were entitled to qualified immunity on the detention issue, but denied it as to the alleged use of excessive force. The detectives appealed.  

The Ninth Circuit Court of Appeal, in a 2-1 decision, reversed the district court’s denial of qualified immunity on the excessive force issue. In evaluating whether the detectives were entitled to qualified immunity, the court necessarily considered the lawfulness of Hopson’s detention and whether the force that was used (assuming the truth of Hopson’s allegations) in executing that detention was reasonable.   

Doctrine of Qualified Immunity: As for whether the detectives were entitled to qualified immunity from civil liability, the rules are well-established: “Under the doctrine of qualified immunity, police officers are not liable under (42 U.S.C.)?§ 1983?‘unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was “clearly established at the time.’” (Italics added.) (District of Columbia v. Wesby (2018) __ U.S. __ [138 S.Ct. 577, 589; 199 L.Ed.2nd 453].)  

Typically, the court will skip right to the second prong of this test, i.e., whether the rules establishing the alleged unlawfulness of the officers’ conduct were clearly established at the time. According to the ruling, “Under the second prong of the inquiry, a constitutional violation is clearly established only if existing law ‘placed the constitutionality of the officer’s conduct “beyond debate,’ ” such that “every ‘reasonable official would understand that what he is doing’ is unlawful.”  

What all this means is, the courts recognize that it is not fair to hold an officer responsible for his or her actions if there isn’t prior case authority putting them on notice that what they are doing is wrong. While there does not need to be a case directly on point, the rules an officer are expected to follow must have “been ‘settled’” by “controlling authority,” or at the very least, by “a robust consensus of cases of persuasive authority” that “clearly prohibit[s] the officer’s conduct in the particular circumstances” with “a high degree of specificity.” In other words, officers, using their common sense, must be on notice from the courts that what they are doing violates a suspect’s federal statutory or constitutional rights to be held civilly liable.   

Lawfulness of the Detention: The federal district (trial) court had earlier ruled that the detectives were entitled to qualified immunity on the detention issue. Though this was not an issue on appeal, the Ninth Circuit discussed it anyway, with a majority of the panel holding that it agreed with the district court. The controlling authority is Illinois v. Wardlow (2000) 528 U.S. 119, 123 [120 S.Ct. 673; 145 L.Ed.2nd 570], where the Supreme Court held that: “an officer may, consistent with the?Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.”  

The landmark case decision that, per the court, “bear(s a) notable resemblance” to the instant case, is Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868; 20 L.Ed.2nd 889].) In Terry, an officer watched two men repeatedly pace in front of a store window, peer around and confer amongst themselves for several minutes.?They were soon joined by a third man, who briefly conversed with them before walking away.?The officer’s training and experience led him to believe that the three men were casing the store for a robbery. Based upon what was held to be the officer’s “reasonable suspicion” that “criminal activity was afoot,” the officer stopped and frisked all three.? 

The Supreme Court held in Terry that the officer had sufficient reasonable suspicion to believe that the men were armed and dangerous, permitting the officer to stop and detain them for further investigation and to frisk them for weapons.?Per the Supreme Court, “The suspects’ actions were consistent with [the officer’s] hypothesis that these men were contemplating a daylight robbery – which, it is reasonable to assume, would be likely to involve the use of weapons.” 

In the instant case, Hopson v. Alexander, despite the state trial court’s (and the Ninth Circuit’s dissenting justice’s) conclusion that the officers did not have sufficient reasonable suspicion to justify a detention, the majority of the court here held that there was at the very least sufficient prior authority to cause detectives Alexander and Grissom to reasonably believe that Hopson and Jones were casing the convenience store in preparation for committing a robbery (a suspicion later bolstered by the discovery of a loaded handgun in their vehicle).  

The Court thus concluded as follows: “Under the qualified immunity framework, and given the suspicious Terry-like conduct observed here, no clearly established law gives us cause to second-guess Detective Alexander’s on-the-ground suspicion that an armed robbery was about to occur. And an armed robbery necessarily involves the use of weapons…(E)stablished law therefore did not prevent the officers from suspecting Hopson might be armed – which, in fact, he was.” The federal district court’s conclusion that the officers were entitled to qualified immunity on this, therefore the issue was upheld.   

Use of Force and Failing to Identify: The federal district (trial) court ruled that the officers were not entitled to qualified immunity on the issue of whether the force used to detain Hopson and Jones was excessive under the circumstances. A majority (with again, one dissenting opinion) of the Ninth Circuit disagreed. The question is – in a civil case such as this one – “whether it was clearly established that the degree of force the detectives used in response to the perceived threat was excessive under the Fourth Amendment.” In his lawsuit, Hopson cites three aspects of the detectives’ conduct that, in his view, were clearly prohibited under existing case law, i.e., (1) pointing a weapon at him, (2) “forcefully” removing him from his vehicle and handcuffing him and (3) failing to announce that they were police officers.  

In rejecting Hopson’s argument that case authority made it clear that the first two acts were excessive, the court first noted that under the right circumstances “the proper use of force can include the very types of force used here: pointing a gun at a suspect and handcuffing him.” Rejecting various prior cases submitted by Hopson arguing that it was well settled that the detectives’ use of guns and handcuffs in similar situations was excessive, the court noted to the contrary: “Indeed, we have expressly held that ‘[i]t is well settled that when an officer reasonably believes force is necessary to protect his own safety or the safety of the public, measures used to restrain individuals,?such as stopping them at gunpoint and handcuffing them, are reasonable.’” (Italics in the original. Alexander v. County of Los Angeles (9th Cir. 1995) 64 F.3rd 1315, 1320.)  

As for the officers’ failure to identify themselves as a police officers, the court simply noted that Hopson did not cite any “clearly established law concerning (1) when an officer must identify himself as such before using the degree of force used here, (2) what form that identification should take, and (3) how the lack of verbal identification is to be weighed against other considerations.” 

So even assuming the officers failed to identify themselves when they perhaps should have, there is no prior case authority supporting the argument that this fact alone somehow converted an officer’s failure to identify himself into “excessive force.”  

Conclusion: Finding no prior authority for the argument that it violated the Fourth Amendment for a police officer to (1) use his firearm and handcuffs in a detention situation such as occurred here (i.e., where the plaintiff was reasonably suspected of preparing to commit an armed robbery), (2) forcibly pulling that suspect out of his car, and then (3) failing to identify himself as a police officer, the court held that the detectives were entitled to qualified immunity on these issues when raised in a subsequent civil suit. 

The issue in this case was whether the detectives were entitled to qualified immunity given the lack of any case law supporting Hopson’s arguments, and not necessarily that the state trial court had in fact ruled incorrectly in finding that Hopson and Jones were illegally detained. The state court’s suppression of the evidence recovered from the Hopson’s car was not the issue. But the Ninth Circuit also hints very strongly that the trial court was wrong in ruling that the detention was illegal. The court all but says that not only was the detention of both Jones and Hopson lawful as a matter of law, but that the use of guns and handcuffs in detaining them – where it appeared that they were preparing to commit an armed robbery – was also lawful.  

Had the prosecution at the state trial court stage appealed the suppression of the gun and marijuana, we might not be discussing the issue here in a civil suit but rather in a direct appeal from the defendants’ potential conviction.  

As for the detectives’ failure to identify themselves, while it would have been a good idea to do so, the court kind of writes it off as no big deal. At the very least, this issue did not somehow convert the use of physical force and handcuffs in executing a detention into a Fourth Amendment excessive force violation. Note, by the way, that the Court assumes this situation to be a “detention” only, and not an arrest. Hopson apparently never argued otherwise, so this potential issue is never discussed. Indeed, pointing a firearm at a suspect and using handcuffs does not necessarily convert a detention into an arrest, a rule for which there is abundant case law.  

The dissenting justice disagrees with just about everything the majority held, basically arguing that the detectives overstepped their authority in assuming that Hopson and Jones were up to no good. Such an argument seems a bit illogical, given the circumstances in this case and in the very similar circumstances of the landmark Terry v. Ohio Supreme Court decision. But it does highlight the fact that just about every decision an officer makes in the field is going to be second-guessed. So, get used to it.  

With that in mind, the two majority justices offer very sage advice to cops in the field. worth repeating here: 

“The parties’ competing perspectives underscore the competing considerations at stake when law enforcement officers approach a suspect. Police must be cautious not to point guns at people in haste when the circumstances do not warrant it. Such conduct can lead to accidents or violent escalations that might not otherwise have occurred. It can also under our precedents produce harm of a constitutional magnitude, even when no physical injury results. At the same time, police officers must have some latitude in relying on their judgment and experience to anticipate criminal conduct that may be about to occur. Officers are allowed and expected to be proactive. And when they have a basis for intervening, they are not inevitably required to use only the most minimal force and hope for the best.” 

Government Code, § 821.6 does not provide law enforcement officers with absolute immunity absent the subsequent instigation of a judicial proceeding. 

• The California Government Claims Act 

• Government Code, § 821.6 and absolute civil immunity 

• Immunity for injuries?inflicted during a law enforcement investigation  

Government Code § 821.6, as a part of the California Government Claims Act,?provides public employees, and their employers, with absolute immunity from civil liability for their tortious acts, but only in acts leading to the actual initiation of a criminal prosecution or other judicial or administrative proceeding.  

Married couple José and Dora Leon had a dispute with another man (the details of which were not described), resulting in the other man shooting José. Riverside County sheriff’s deputies found José unconscious in a driveway of a mobile home lot near where he lived. Hearing more shots, the deputies dragged José to the cover of a nearby parked vehicle, where they unsuccessfully attempted to revive him. In dragging his body to where they could work on him, José’s pants slid down to around his ankles, exposing his naked body. José was left exposed like this to both Dora and the general public for the next eight hours, during which the deputies at some point found the shooter, who had committed suicide. As a result, no criminal case or other court proceedings were ever initiated.  

Dora subsequently sued in state court, asserting a single cause of action for the “negligent infliction of emotional distress.” The complaint alleged that the deputies and the public entity that employed them (Riverside County) failed to exercise reasonable care by leaving José’s body exposed and uncovered for hours, for anyone to view. The county moved for summary judgment to dismiss the lawsuit, arguing that because the suit arose from actions the deputies took while investigating José's homicide, both the employees and their employer were statutorily immune from liability pursuant to?Government Code § 821.6. The trial court agreed and entered judgment for the civil defendants. The Fourth District Court of Appeal affirmed. (See Leon v. County of Riverside?(2021) 64 Cal.App.5th 837.)  

In so doing, the Fourth District relied upon a line of appellate court cases that “ha[s] consistently construed?section 821.6?as immunizing a public employee from liability for any injury-causing act or omission in the course of the institution and prosecution of any judicial or administrative proceeding, including an investigation that may precede the institution of any such proceeding.” (Italics in original; Id., at p. 846.) Per the Fourth District Court of Appeal, because the deputies’ negligence, if any, in failing to cover José’s body occurred during the deputies’ performance of their investigative duties, both the deputies as well as the county were immune from civil liability, pursuant to the current interpretation of Government Code § 821.6. Dora Leon appealed, and the California Supreme Court granted review.  

The California Supreme Court unanimously reversed.  

Until 1963, California used a common law doctrine of governmental immunity that generally barred tort (i.e., civil) lawsuits against public entities. In 1961, the California Supreme Court did away with this common law approach relative to governmental tort immunity. (See Muskopf v. Corning Hospital Dist.?(1961) 55 Cal.2nd 211.) So the Legislature stepped in, reestablishing governmental immunity by enacting into law what was known at the time as the “California Tort Claims Act,” and later changed to the?“Government Claims Act.” This comprehensive legislation abolished once and for all common law tort liability and immunity for public entities, replacing it with “a comprehensive statutory scheme governing the liabilities and immunities of public entities and public employees for torts.”  

Generally, the Act makes public entities liable for the negligent on-the-job acts of its employees. However, it also provides exceptions. For instance, the Act immunizes public entities from civil liability when the employee him- or herself is immune under the applicable statutes. (Government Code § 815(a) & (b)) The Act contains numerous provisions conferring immunity on employees under certain circumstances, including for acts or omissions resulting from an exercise of discretion vested with the employee (id.,?§ 820.2); for the execution of enactments when carried out with due care (id.,?§ 820.4); and for the failure to adopt or enforce an enactment (id.,?§ 821). 

The immunity provision at issue in this case is Government Code § 821.6. This section provides that: 

“A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”  

The state Supreme Court, in this decision, discusses what “instituting or prosecuting any judicial or administrative proceedings” means. In so doing, the issue becomes whether a resulting in-court proceeding (whether judicial or administrative) must actually occur for section 821.6 to confer immunity on a police officer who acts negligently in the field.  

The court goes on to discuss several lower court cases that go both ways on this issue. Ultimately, the court held that because 821.6 specifically requires that some sort of “judicial proceeding” actually occur, the section cannot be used to bestow immunity on a law enforcement officer absent at least the filing of criminal charges or some other resulting judicial proceeding. 

In the instant case, both José Leon and the man who shot him were deceased. No criminal charges or other judicial proceedings resulted from the deputies’ alleged negligence by failing to remove or cover José’s body in a timely manner. Contrary to rulings by the trial court and the Fourth District Court, negligence at the scene of an incident alone, without some resulting “judicial proceeding,” precludes a civil plaintiff from using Government Code § 821.6 as the basis for a civil suit.  

Per the high court: “(S)ection 821.6?is more aptly characterized as providing immunity against liability for claims of injury based on tortious or wrongful prosecution. The immunity is narrow in the sense that it applies only if the conduct that allegedly caused the plaintiff’s injuries was the institution or prosecution of an official proceeding.” No such proceedings resulted from this incident.  

After analyzing the legislative intent, the common law and statutory interpretation rules, along with the relevant prior case decisions from both sides, the court concluded that section 821.6 does not confer absolute immunity from civil liability on the deputies (and thus also the county) in this case.  

However, the court also noted “that section 821.6 is not the only provision of the Government Claims Act capable of addressing the concerns the County now raises.” In other words, other provisions of the Government Claims Act may in fact confer immunity on the parties in this case, even if not to the same extent as section 821.6, and even if not always absolute. 

After suggesting other such Government Claims Act provisions (e.g., Government Code § § 825-825.6, public entity defense of claims and payment of judgments against public employees; Government Code § 820.2, immunity for discretionary acts taken within the scope of authority; Government Code § § 820.4-821.8, immunity for any “act or omission, exercising due care, in the execution or enforcement of any law,” and/or immunity for the “failure to enforce an enactment” or for “failure to arrest.”), the court concluded that “(d)epending on the circumstances, these and other immunity provisions may apply to certain investigatory actions of law enforcement officers even if?section 821.6’s absolute immunity does not apply.”  

The Court therefore remanded those issues back to the trial court for consideration of the applicability of any of these other Government Claims Act provisions.  

It must also be noted that this case does not affect an officer’s federal “qualified immunity” from civil liability (pursuant to 42 U.S.C. § 1983) for actions that either don’t violate the U.S. Constitution or a federal statute, or for which prior case authority is not sufficiently settled that the officer should have known that what he or she is doing (or isn’t doing) is wrong.  

All this decision here stands for is that Government Code § 821.6’s absolute immunity provisions do not apply when there are no corresponding “judicial proceedings” and the officer’s actions (or inactions) in the field are the sole issue.  

It’s really a very narrow ruling, and one I probably would not have even briefed had it not been for the concern of some officers as expressed to me about whether this case might have done away with any claim of immunity (absolute or qualified) for an officer’s negligence or other illegal or unconstitutional acts in the field.  

That having been said, I’m not sure why the officers in this case left José’s naked body exposed for some eight hours. Of course, I wasn’t there, but it seems to me that at some point, even if the shooter had not yet been located. someone would have thought to have some concern for José’s dignity in death (not to mention Dora Leon’s distress) and covered him up.  

• Search warrants and probable cause
• DNA evidence and a person of interest vs. probable cause 
• Residential trash can searches 

Legal issues: 

• Search warrants and probable cause 

For a search warrant to be legally sufficient, it need only be established that the information in the warrant’s affidavit establishes a fair probability that the search will uncover evidence of criminal wrongdoing. Probable cause for purposes of a search warrant affidavit requires that a “fair probability” exists that a search will uncover wrongdoing, i.e., something less than a preponderance of the evidence or even a prima facie case.  

• DNA evidence and a person of interest vs. probable cause 

A match of a person’s DNA with evidence obtained from a rape victim’s vaginal swabs, plus other suspicious circumstances, are sufficient to establish probable cause for a search warrant.  

• Residential trash can searches 

Searches of a resident’s trash can within the curtilage of a home (the area immediately around it), absent an exception (e.g., consent or an exigency), require a search warrant. 

In 1980, a 79-year-old woman was murdered in her Anaheim, California, apartment. She was found naked on her bed with legs spread apart and a pillowcase stuffed into her mouth. She had bruises on her body and bite marks on her lower chest and thigh. An autopsy revealed two broken ribs and tears to her vagina. She appeared to have been violently raped. The cause of death was listed as asphyxia. Vaginal swabs were subsequently taken and the resulting sexual assault “rape kit” was booked into evidence. No suspects were identified at the time as the case went cold.  

Then in 2002, the victim’s rape kit was retrieved from the Orange County Crime Lab by a forensic scientist, who extracted DNA from the victim’s vaginal swabs, creating a male DNA profile. Advances in DNA technology over the subsequent years enabled forensic scientists to further identify more genetic markers from the extracted cells.  

Finally, in 2020, cold case investigator Detective Julissa Trapp of the Anaheim Police Department was assigned to the case. Collaborating with the FBI, Detective Trapp had the unknown DNA profile sent to a private company (“DNA Solutions”) that was able to generate a “single nucleotide polymorphism” profile. (Author’s note: An SNP is defined as “A DNA sequence variation that occurs when a single nucleotide [adenine, thymine, cytosine, or guanine] in the genome sequence is altered and the particular alteration is present in at least 1% of the population.” It still makes no sense to me, but I added this for those of you who are into this stuff.)   

The digitized genetic data was then uploaded to something referred to a free genealogy website where an investigator may upload digitized genetic data in an attempt to find a match. This resulted in a DNA hit in 2021, with the FBI notifying Detective Trapp that Andre William Lepere had been identified as “a person of interest” (this term not being defined. See Note, below.) Some intense computer work by Detective Trapp located defendant as a resident of Alamogordo, New Mexico, at least as of 2021.  

Detective Trapp sought the assistance of Agent Eric Marrujo of the New Mexico State Police. Further investigation established some 1980 ties that the defendant had to the Anaheim area where the victim lived. First, it was shown that the defendant had been arrested in 1973 in Anaheim, when he listed his address as an apartment within three apartment complexes of where the victim lived. Also, it was noted that defendant’s mother had died in a car accident in 1982, and her address was in the same apartment complex where the victim lived. It was further established that the defendant had a rap sheet which included an arrest for attempted murder.  

Based upon this information, Agent Marrujo sought a search warrant for the defendant’s trash, with the idea that items might be recovered with the defendant’s DNA. In the warrant affidavit, Agent Marrujo concluded that Anaheim PD “Detective Trapp believes Andre Lepere is a suspect in the murder [of the victim] and a DNA sample needs to be collected from [Lepere] to compare his DNA to the profile from the victim’s vaginal swabs.”  

A New Mexico magistrate authorized the warrant which resulted in the recovery of beer cans and other items from the defendant’s outside trash can. The defendant’s DNA was found on one of the beer cans, and it was later found to match the DNA profile obtained from the 1980 Anaheim murder victim. The defendant was therefore arrested and extradited to California, where he was charged in state court with a special circumstance murder.  

Pretrial, the defendant filed a motion to suppress the evidence recovered as a result of the search warrant. His motion was denied – and with certain incriminating admissions he made upon being arrested introduced into evidence along with the DNA evidence – a jury found him guilty of murder and that the murder was committed during the commission of a rape. The trial court imposed a mandatory sentence of life?without the possibility of parole (LWOP). The defendant appealed.   

The Fourth District Court of Appeal (Div. 3) affirmed the trial court’s ruling. The issue on appeal (as it was in the defendant’s pretrial motion to suppress) was the legality of the search warrant for defendant’s trash can, i.e., was there sufficient probable cause to justify the issuance of the warrant? The trial court had ruled in the affirmative. The appellate court agreed. The basic rules are well established. The Fourth Amendment requires that for a search to be lawful, a search warrant authorizing the search must first be obtained (subject to certain exceptions not relevant here). Also, per the Fourth Amendment, the issuance of such a search warrant must be supported by “probable cause.”  

The problem is in determining how much information is required to establish the necessary probable cause. As noted by the appellate court: “The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate (who authorized the warrant) had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” In so noting, the court recognized that it doesn’t take much for there to be probable cause. The California “Supreme Court has held the probable cause threshold ‘is less than a preponderance of the evidence or even a prima facie case.’” (People v. Bryant, Smith and Wheeler?(2014) 60 Cal.4th 335, 370).  

When the New Mexico magistrate was confronted with Agent Marrujo’s warrant affidavit, his job was “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” (People v. Kraft?(2000) 23 Cal.4th 978, 1040-1041).  

In evaluating the magistrate’s decision, the court noted that “(t)he search ‘warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence’ supporting the finding of probable cause.”?(Skelton v. Superior Court?(1969) 1 Cal.3rd 144, 150). And then, if all else fails, an officer’s “good faith,” acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, will prevent the suppression of the resulting evidence even if the probable cause falls a bit short, at least so long as the affidavit is not “so lacking in indicia of probable cause that an officer’s reliance on the warrant is objectively unreasonable.” (People v. French?(2011) 201 Cal.App.4th 1307, 1323).  

With these rules in mind, the court considered the warrant in this case, concentrating on the “probable cause” portion of the affidavit. In reciting his probable cause, Agent Marrujo averred that he was assigned to assist Detective Trapp with the 1980 Anaheim homicide investigation. The agent then provided what the court describes as “a fairly detailed?description of the crime scene.” He summarized the Orange County Crime Lab’s DNA investigation and the FBI’s recent involvement through “investigative genealogy.” The affidavit states: “On October 2, 2020…the unknown DNA profile was sent to?DNA Solutions to possibly develop a SNP (single nucleotide polymorphism) to assist with the investigative genealogy. On December 21, 2020, Detective Trapp received a report from DNA Solutions. The report stated DNA Solutions had been able to generate a SNP profile and had also been able to produce an SNP profile that was uploadable to [redacted]. [Redacted] is a free genealogy website that allows you to upload digitized genetic data.”  

Agent Marrujo continued in his affidavit: “On January 29, 2021, FBI Agents Steve Wrathall and Nina Vicencia contacted Detective Trapp to inform her that through genealogy, an investigative lead was generated that identified Andre William Lepere (DOB: 4/16/1957) as a person of interest in this case. Detective Trapp conducted numerous computer checks and learned Lepere currently had a listed home address in Alamogordo, New Mexico.” Agent Marrujo described the addresses the defendant and his mother were associated with in Anaheim near the victim’s residence at the time of the murder.  

Agent Marrujo concluded: “Based on the above information and details, Detective Trapp believes Andre Lepere is a suspect in the murder [of the victim] and a DNA sample needs to be collected from [Lepere] to compare his DNA to the profile from the victim's vaginal swabs.” The issue here is whether this information, as described above, was sufficient to supply the necessary probable cause to search the trash cans at defendant’s Alamogordo home.  

The court ruled in the affirmative. Aside from providing a possible DNA connection between the defendant and the 1980 murder, there was corroborating evidence that the defendant had been living and committing other crimes near the victim’s apartment in Anaheim near the time of the murder. The court found that with these facts considered in combination, this was sufficient to establish the necessary “fair probability” that defendant may have been the murderer, and that a search of a defendant’s outside trash “would uncover” circumstantial DNA evidence further linking him to the commission of the murder.  

Although the court noted that Agent Marrujo could have written a more fact-intensive description of “investigative genealogy,” the level of detail in the affidavit as described above was held to be “adequate.” The court wrote that perfection is not required, “Because they (i.e., affidavits) are often?written by nonlawyers in the midst of an investigation, technical requirements for elaborate specificity have no place in the review of search warrant affidavits” (People v. Varghese?(2008) 162 Cal.App.4th 1084, 1103).  

The court therefore held that “the New Mexico magistrate had a reasonable basis for issuing the search warrant, and the trial court properly denied (the defendant’s) pretrial motion to suppress the DNA evidence.” As a backup, the court further held that “even if we were to find the affidavit was not sufficiently detailed, under the good faith exception to the exclusionary rule, we would not find it necessary to exclude the evidence...(T)he officers executing the search objectively relied on the validity of the search warrant in good faith.”  

The gist of this opinion is that the courts don’t expect perfection when you write a search warrant affidavit. But this is not to be taken as permission to start getting sloppy or lazy. I’ve always advised cops that it’s better to put too much into your warrant affidavits than too little, assuming what you include is accurate and not misleading.  

In my reading of this case, I can see some validity in the defendant’s argument to the effect that the described probable cause was a little thin. A suspect’s DNA in a murdered rape victim does not eliminate the possibility of consensual sex at some time prior to the murder, which was in fact defendant’s defense at trial. Another appellate panel might have agreed with the defendant.  

So don’t push this envelope (i.e., writing thinly supported affidavits) too far or you might be the subject of a not-so-flattering published decision someday.  

On another issue, what I’d like to see in an appellate court decision some day is a legal definition to the term “person of interest.” I know of no court that has yet done so. This court does not. But the internet does. Per Google: A “person of interest” is “(a) person being monitored, sought, or?questioned?in connection with a criminal investigation or security operation, especially as a potential suspect.” The search engine goes further, citing an?assistant professor for Northeast State Community College’s Criminal Justice Department, Eric Stanton, in Johnson City, Tennessee, who ventured a definition without stating his source: “[Person of interest] is widely used to describe a person who may have been involved in a crime and who the police are interested in finding out more about, However, if they don’t have enough evidence to call them (sic) a suspect, they are not able to take action.”  

I take this to mean that not yet being a full-fledged “suspect,” a “person of interest” cannot be lawfully detained absent other evidence connecting him or her to the crime being investigated. The defendant in this case was initially referred to as a person of interest by the FBI to Detective Trapp, based apparently upon a “DNA hit” in 2021. Detective Trapp wisely sought other corroborating evidence that could be used to tie him to the murder, eventually converting Lepere from a “person of interest” to one who, at least circumstantially, appeared to be the murderer. Good police work by both Detective Trapp and Agent Marrujo.  

Lastly, you might be asking yourself this: “I thought you didn’t need a search warrant to search one’s discarded trash.” That rule only applies to trash cans that have been removed from the curtilage (immediate area) of the suspect’s house and placed out on the curb for collection. (California v. Greenwood (1988) 486 U.S. 35.) It does not apply to trash cans within the curtilage of the suspect’s home. All searches within the curtilage of a home, including a suspect’s trash, require a warrant, consent, or exigent circumstances. (Florida v. Jardines?(2012) 569 U.S. 1).