• Detentions and Plain Sight Seizures
• Prolonged Detentions
• Abandonment
• Intervening Circumstances and Attenuation of the Taint
• Flight as a Possible Attenuation of the Taint

The plain sight observation of a non-contraband item (such as a car key) during a patdown search for weapons does not warrant the seizure of that item.  The continued detention done for the purpose of investigating other non-criminal activity violates the Fourth Amendment.  An “intervening circumstance” (e.g., flight) that occurs after the illegal seizure of property does not make that property retroactively admissible via an “attenuation of the taint” theory.  

Defendant Terrance Baker, along with Walter Collin Beatty, robbed a Sprint store in Los Angeles at gunpoint, taking a bunch of cellphones.  The semi-automatic pistol defendant used had a distinctive black frame and silver slide, as observed on a store’s videotape.  A week after the robbery, LAPD Patrol Officers Byun and Salas observed defendant loitering with others at the Nickerson Gardens housing complex.  The officers knew that defendant was a gang member and that he did not reside at Nickerson Gardens.  Suspecting that he was therefore trespassing (it not being discussed what specific trespass statute might apply), the officers decided to make contact.  Seeing the officers approach, defendant lifted his shirt to show the officers he was unarmed.  Officer Byun, however, patted him down anyway.  No weapons or contraband were found.  Officer Byun did observe, however, a car key attached to defendant’s belt loop. (Although not described, the key was apparently of the now-common type that included an electronic car fob built into it.) After obtaining defendant’s driver’s license, the officer took the car key off of defendant’s belt loop.

Officer Byun then walked away with the car key and defendant’s driver's license to an adjacent parking lot, clicking on the key in an attempt to identify which car matched the key.  Defendant himself was “directed” to follow the officer and then “commanded” to stop and put his hands behind his back.  (The legality of what was at this point—if not earlier—obviously a detention was not contested or discussed.)  Asked if he had a vehicle with him, defendant responded that he did not.  But low and behold, when Officer Byun pressed the car lock on the key, he observed the headlights flash on a nearby red Buick parked on the street.  Officer Byun told defendant: “You don't have a car? That’s your car right there, it’s blinking, man.” Although handcuffed, defendant decided he didn’t want any part of this and took off running—handcuffs and all—only to be apprehended a short distance away. Officer Byun managed to lose the car key in this chase. Defendant told the officers the car belonged to his mother and that he ran “because he was scared.” 

Meanwhile, another officer who responded to the scene looked into the locked Buick, later testifying that he “was able to see underneath the front seat what appeared to be the butt of a handgun.”  Breaking into the car (the key having been lost), a handgun with a distinctive black frame and silver slide was recovered.  It was later determined that this gun matched the description of the gun used in the robbery of the Sprint store.  Defendant was charged in federal court with a “Hobbs Act” robbery (i.e., a robbery affecting interstate commerce) and conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a), and brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii).  The “brandishing” charge stemmed from defendant holding the pistol to a Sprint store employee’s head as Walter Beatty took iPhones from the store’s safe.  After defendant’s motion to suppress the handgun was denied, a jury (with Beatty—apparently given a deal in exchange for his cooperation—testifying against defendant at the trial) convicted him of all charges.  Sentenced to 209 months (nearly 17½ years) in prison, defendant appealed.

The Ninth Circuit Court of Appeal affirmed in part (the robbery) and reversed in part (the brandishing).  The primary issue on appeal was the legality of the seizure of the car key from defendant’s belt loop and its use in locating the Buick in which the firearm was discovered.  The constitutional principles are well-established.  The Fourth Amendment protects against unreasonable searches and seizures.  Defendant’s car key was “seized” from his person without his permission.  But leading up to the seizure of the key, the parties first debated whether or not defendant himself had been lawfully “seized” (i.e., detained) when first confronted in front of the Nickerson Gardens housing complex. 

The government argued that defendant had been lawfully detained and patted down weapons, while defendant argued that he had been unlawfully arrested (not just detained).  Assuming for the sake of argument that defendant’s detention was lawful, the Court declined to decide this issue as irrelevant and went straight to the issue of the seizure of the key from defendant’s belt loop.  Prior to the seizure of the key, defendant had been patted down for weapons; a procedure which has been approved by the Supreme Court for purposes of insuring the officers’ safety in circumstances where the officers have a reasonable suspicion that the subject may be armed.  (Terry v. Ohio (1968) 392 U.S. 1.) 

In this case, the officers found no weapons, making the legality of having conducted a patdown under these circumstances irrelevant (i.e., because with nothing found, there was nothing subject to suppression).  But assuming the legality of the patdown, it is a rule that officers may also lawfully seize “nonthreatening contraband detected during (the) protective patdown search . . . so long as the officers’ search stays within the bounds marked by Terry.”  (Id., at p. 373.)  In this case, after having determined that defendant did not possess weapons or contraband, the officers “turned to other purposes” when they removed the car key visibly hanging from defendant’s belt loop, and used it to search for any nearby vehicle associated with that key.  As noted by the Court: “The Government is unable to explain how the officers’ post-patdown detention and search for the car was intended to confirm or dispel their suspicions about a crime (of trespass) being committed or to secure the safety of anyone on the scene.” 

The Court found, therefore, that the seizure of the key and the search for a car associated with that key, being unrelated to the purposes of the initial detention and patdown, violated the Fourth Amendment.  Per the Court:  “Had officers limited their Terry stop to a brief detention and protective patdown search of (defendant), they would have had no occasion to search for a car in an adjoining parking lot that matched the key fob hanging from (defendant's) belt loop.” 

As a result, the firearm discovered in defendant’s vehicle should have been suppressed as the product of that Fourth Amendment seizure violation.  In so holding, the Court rejected the government’s rather novel argument that by claiming not to have a vehicle with him, defendant somehow “abandoned” the car key, leaving him without standing to challenge both its seizure and the resulting search of the car.  “That the key was hanging from (defendant’s) belt manifests an objective intent to maintain possession of it.”  Defendant never intended to abandon his car key. 

The Court lastly rejected the government’s argument that defendant’s decision to flee “attenuated the taint” of the illegal confiscation of his key, noting simply that defendant’s choice to flee occurred after the key had already been illegally taken.  In summary, the Court held as follows:  “The discovery of the handgun was the product of illegal police conduct, whether that (illegal) conduct is framed as exceeding the permissible scope of a Terry stop (i.e., an unlawfully ‘prolonged detention’) or as the warrantless seizure of the car key.  Where evidence is obtained from an unlawful search or seizure, the exclusionary rule renders inadmissible both ‘primary evidence obtained as a direct result of an illegal search or seizure’ and ‘evidence later discovered and found to be derivative of an illegality,’ known as ‘fruit of the poisonous tree.’”  As such, the gun should not have been allowed into evidence at his trial.  However, that having been said, the Court held that although the introduction of the gun at trial required the reversal of the “brandishing” (18 U.S.C. § 924(c)(1)(A)(ii)) conviction (there being no other evidence that the gun used in the robbery was in fact a real gun; a necessary element of the federal brandishing charge), use of the gun at trial was “harmless error” as to the robbery charge (18 U.S.C. § 1951(a)).  That’s because there was an abundance of other evidence (particularly with his co-defendant Beatty testifying against him) that defendant did in fact commit the robbery.  So as to the robbery, defendant’s conviction was affirmed.

It’s hard to criticize the officers who—in the heat of the moment—confiscated a car key that is in plain sight, what with the abundance of case law talking about the lack of an expectation of privacy and the admissibility into evidence of anything observed in plain sight.  So I can see why the officers didn’t think they did anything wrong.  But had they had time to think about it, they might have realized that the observation in plain sight of something that is otherwise legal to possess (i.e., the key) is a different issue altogether than the right to “seize” that item and then to use it as a tool to locate a person’s vehicle when neither the item seized (the key) nor the item later searched for (the car) has any connection to the reasons for a detention.  That’s why this case is important.  Officers need to think about the initial justification for the detention and limit any continuing detention and investigation to seeking out evidence relevant to that issue.  The only exception is when during that lawful detention, a new reasonable suspicion develops concerning some other possible crime, thus justifying a further detention to investigate the newly developed suspicion. Applying this rule to the case at issue here:  The officers initially detained defendant for a possible trespass violation, it apparently being illegal to trespass on the grounds of the Nickerson Gardens housing complex (a potential issue that was not discussed).  The officers were legally bound to limit their investigation to that possible trespass charge, being allowed to continue the detention only as long as it reasonably took to resolve that issue.  But they instead wandered off into a side investigation of what might be found in a car defendant may have had with him without any reason to believe that (1) such a car existed, and if so, (2) that it might contain any evidence of a criminal violation.  If there was any connection between such a vehicle or its contents and defendant’s possible trespassing violation, the officers were unable to satisfy the court that such a connection existed.  Absent such evidence, the gun was properly suppressed as fruit of the poisonous tree. 

• Community Caretaking Doctrine
• Impounding and Inventory Searches of Vehicles

The constitutionality of an impoundment and inventory search of an arrestee’s motor vehicle depends upon the applicability the Community Caretaking Doctrine.  Generally, the Community Caretaking rule applies in those situations when the driver has been arrested and his vehicle is parked illegally, poses a safety hazard, or is vulnerable to vandalism or theft.  This includes when the vehicle is in a third party’s driveway. An inventory search of an impounded vehicle is lawful so long as not used as a subterfuge for a criminal investigation and his/her unfettered discretion is limited by a law enforcement agency’s searching procedures. 

San Bernardino County Sheriff’s Deputy Daniel Peterson attempted to stop defendant Jonathan Anderson at about 2:00 a.m. one morning, for a partially obscured license plate in violation of Veh. Code § 5201.  Defendant initially failed to stop, turning abruptly into a dead-end street instead and accelerating to the end of the road.  As the deputy called for backup, defendant turned into an apartment complex, and then into the driveway of a private residence where (having run out of places to go) he stopped and got out of his truck. The total elapsed time between when Deputy Peterson first lit up his emergency lights to when defendant finally stopped was about 30 to 45 seconds. Believing that defendant had attempted to flee—an assumption that defendant denied—Deputy Peterson took him into custody at gun point and, upon arrival of a second deputy, handcuffed him.  Defendant claimed he didn’t see the deputy’s emergency lights.  He also claimed to be parked in the driveway of a friend.  Defendant did admit, however, that his license was expired; a fact verified via radio.  It was also learned that defendant was a “career criminal” (whatever that means).  Upon contacting the resident who told the deputies he did not know defendant, and that he wanted defendant’s vehicle removed from his driveway, the deputies decided to impound defendant’s truck pursuant to Veh. Code § 14607.6 (dealing with the impoundment of the vehicle of an unlicensed driver).  In preparation to towing the vehicle, an inventory search was initiated (over defendant’s express objection), resulting in the recovery a loaded handgun from under the driver’s seat.  Defendant was therefore arrested for being a felon in possession of a firearm.  As Deputy Peterson took defendant to jail, Deputy Kyle Shuler filled out the necessary paperwork related to the impoundment pursuant to the standard administrative procedure requirements as described in the San Bernardino County Sherriff’s Department Manual.  This included inventorying the contents of the vehicle.  In so doing, Deputy Shuler checked off boxes reflecting the presence of two radios and a firearm in the car.  The deputy failed, however, to document other property found in the car although pictures were taken of everything.  Defendant was charged in federal court with one count of being a felon in possession of a firearm, per 18 U.S.C. § 922(g)(1).  After his motion to suppress the gun was denied (defendant arguing primarily that the deputies initiated the search of his truck before verifying with the homeowner that he did not know defendant; a witness credibility issue decided by the trial court in the deputies’ favor), defendant pled guilty and was sentenced to six years and 5 months in prison.  Defendant appealed.

The Ninth Circuit affirmed in a split, 2-to-1, decision.  As a general rule, the government must obtain a search warrant based upon probable cause in order to conduct a search.  However, there are exceptions, such exceptions typically being based upon what is “reasonable” under the circumstances.  “Reasonableness” is determined “by balancing its intrusion on an individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”  (Delaware v. Prouse (1979) 440 U.S. 648, 654.) With these basic rules in mind, and in applying them to the impoundment and inventory searches of motor vehicles, the “Community Caretaking Doctrine” was born: 

“One ‘well-defined exception to the warrant requirement’ is the inventory search. Illinois v. Lafayette, 462 U.S. 640, 643 . . . (1983); Colorado v. Bertine, 479 U.S. 367, 371 . . . (1987). This exception arises under the community caretaking exception to the warrant requirement for seizure of property. See United States v. Cervantes, 703 F.3d 1135, 1140-41 (9th Cir. 2012). ‘Under the community caretaking exception, “police officers may impound vehicles that jeopardize public safety and the efficient movement of vehicular traffic.”’ Id. at 1141 (quoting Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir.2005). . . . ‘[T]he reasonableness of the impoundment depend[s] on whether the impoundment fits within the authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience.’ Id. . . . ‘[I]mpoundment serves some “community caretaking:”’” purpose if a vehicle is ‘parked illegally, pose[s] a safety hazard, or [i]s vulnerable to vandalism or theft.’ Id. . . .  For example, a community caretaking purpose exists where a vehicle is blocking parking lot spaces ‘in a manner that could impede emergency services’ to a building and neither the driver nor any passenger is legally able to move it. See United States v. Torres, 828 F.3d 1113, 1120 (9th Cir. 2016). Impoundment is also justified where a vehicle is parked in ‘the middle of the street,’ United States v. Johnson, 889 F.3d 1120, 1126 (9th Cir. 2018), left in a public parking lot without anyone to retrieve it, see Ramirez v. City of Buena Park, 560 F.3d 1012, 1025 (9th Cir. 2009); Hallstrom v. City of Garden City, 991 F.2d 1473, 1477 n.4 (9th Cir. 1993), or totaled and lying in a ditch, see United States v. Garay, 938 F.3d 1108, 1111 (9th Cir. 2019).”

In the instant case, defendant’s vehicle was left in a third party’s driveway with that third party asking for its removal.  The Court found that such a situation fits within the Community Caretaking Doctrine, allowing for the vehicle’s removal. The fact that defendant indicated that he had a friend who could be present and move his truck more quickly than a tow truck could was irrelevant.  On this issue, the Court held that “an officer ‘is not required to consider the existence of alternative less intrusive means when [a] vehicle must in fact be moved to avoid the creation of a hazard or the continued unlawful operation of the vehicle.’” (Miranda v. City of Cornelius, supra, at p. 865, fn. 6.)  Then, “(o)nce a vehicle has been legally impounded, the police may conduct an inventory search, as long as it conforms to the standard procedures of the local police department.”  (United States v. Cervantes, supra, at p. 1141.)  This is constitutionally allowed for a variety of reasons.  First, the “expectation of privacy” in a vehicle is significantly less than in one’s home or office.  Secondly, the government has a legitimate interest in the protection of the vehicle owner’s property while it remains in police custody.  A part of this factor is to protect the police themselves (as well as the tow company) from belated claims or disputes over lost or stolen property, as well as to protect the police (and again, the tow company) from potential danger from what could conceivably be in the impounded vehicle (e.g., explosives or hazardous materials).  Probable cause is not a necessary prerequisite of an inventory search.  For this reason, an inventory search cannot be used as a subterfuge for a criminal investigation.  Also, inventory searches do not allow for the “unfettered discretion” of an individual officer.  As such, it is required that inventory searches be conducted in accordance with an individual police agency’s policies (written or unwritten).  The San Bernardino Sheriff’s impound search policies are contained in their “Department Manual.”  The Court here found that Deputy Shuler’s inventory search of defendant’s truck was conducted in a manner consistent with the instructions contained his agency’s Department Manual despite having failed to list all the property found in the truck.  Such an oversight, however, was determined by the Court not to be fatal to a finding that the inventory search was lawful.  Per the U.S. Supreme Court:  “‘[R]easonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment,’ even if the police implementation of standardized inventorying procedure is ‘somewhat slipshod.’”  (Colorado v. Bertine, supra, at pp. 369, 374.)  Defendant also argued that the deputies conducted the search of his truck for a criminal purpose which, if true, would be illegal absent a finding of probable cause justifying the search.  Also if true, the search of defendant’s truck cannot be classified as an “inventory search.”  The Court held, however, that the fact that the deputies may have also hoped to find evidence of a criminal violation does not necessarily invalid an inventory search.  “When an inventory search would have occurred in the absence of a motive to search for evidence of a crime, ‘the mere presence of a criminal investigatory motive or dual motive—one valid, and one impermissible—does not render an [inventory] search invalid.’”  (United States v. Magdirila (9th Cir. 2020) 962 F.3rd 1152, 1157.)  California law authorizes impoundment of a vehicle where the driver does not have a valid driver’s license. (See Veh. Code § 14607.6.)  With this statutory authorization to impound defendant’s truck, and upon a finding that the community caretaking requirements were met, the Court ruled that the deputies followed all the rules for the impoundment of defendant’s truck and a valid inventory search no matter what the deputy’s subjective motivations might have been. As such, the search at issue here was held to be lawful.

There’s really nothing new in this case. But I briefed it anyway to highlight the rule that in order for officers to impound an arrestee’s vehicle, not only must there be a statute authorizing such an impoundment, but the elements of the Community Caretaking Doctrine must also be met.  I consistently get questions from officers in the field asking about this, wondering why a statute alone isn’t enough. The simple answer is that between a statute and a constitutional principle, the Constitution always takes precedence.  For instance, V.C. § 14607.6, used here as the deputies’ statutory authorization to impound defendant’s truck, is useless unless the requirements of the constitutionally based Community Caretaking Doctrine are also satisfied. Parking one’s vehicle in a third party’s driveway, per this decision (for the first time), constitutes a Community Caretaking authorization to remove that vehicle and then (so long as guided by the agency’s search procedures) conduct an inventory search of its contents.  The dissenting opinion, by the way, only asked that the case be remanded for a more thorough examination of the factual issue concerning whether the deputies searched defendant’s truck before or after the homeowner told them that he did not know defendant and that he wanted the truck removed.  If the deputies started an inventory search before knowing that defendant had no right to park in that driveway, then the search (with no probable cause to believe it contained something illegal and without the Community Caretaking theory to rely on) would have been illegal.  While the trial judge determined that he believed the deputies on this issue, this conclusion appeared to be based upon the absence of any factual evidence to the contrary. With some argument that the deputies simply did not have enough time to talk to the homeowner before initiating the search of defendant’s truck (there being only seven minutes from when Deputy Peterson first noticed defendant’s obscured license plate to when he called in the gun to dispatch), the dissenting justice wanted some more testimonial evidence on this potential issue.

Also see additional information in Professor Ray Hill's Bulletin on Community Caretaking Guidelines When Conducting Vehicle Inventory Searches March 3, 2023 LUPC Ref # CAB00200