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• Warrantless Searches of Structures Within the Curtilage of a Home
• Exigent Circumstances

The Fourth Amendment’s restrictions of warrantless searches of a residence extend to other structures within the curtilage of the home.  Whether exigent circumstances justify a warrantless search depends on the circumstances known to the officer at the time of the search.  The persistent odor of smoke, with no actual fire, does not allow for the warrantless search of a cabinet found inside a shed within the curtilage of a home.

A Milpitas Fire Department captain was a part of a crew that responded to defendant Joseph Nunes’ home one afternoon.  Although the 911 call indicated that there was a structure fire, with fire coming from the house, nothing was found to be going on when the fire department got there.  The house did not appear to be on fire.  Neighbors, however, told the fire captain that they had recently seen a plume of smoke coming from the backyard.  Police at the scene found no one to be home.  So the fire captain opened a side gate and entered the backyard.  In the backyard, the captain could smell smoke in the air; a smell, however, that was not consistent with someone cooking.  (Ha!  He’s never smelled my cooking.)  Looking around the backyard for the purpose of confirming there was no imminent danger, the captain could not find any active fire.  Still smelling smoke “around the entire backyard,” however, the fire captain and his crew continued to look for its source.  All they found were some test tubes, chemistry equipment, and a burned up homemade toy rocket.  Also in the backyard was a closed shed.  Although no smoke was coming from the shed, and despite the fact that the smell did not seem to originate from there, the captain—wanting “to make sure everything was clear”—opened the shed and looked inside.  Inside the shed was a metal cabinet.  Despite there being nothing to indicate that the cabinet might be related to the odor of smoke, but concerned that there might be some flammable chemicals inside, the captain opened it.  In the cabinet were some bottled chemicals with which the captain was not familiar.  Because he did not know what the chemicals might be, he called a hazardous materials team to respond.  The police, who had since departed, were also called back to the scene.  Based in part on the chemicals found in the cabinet, the police ultimately obtained a search warrant.  Execution of the search warrant resulted in the recovery of some explosive materials.  After the search warrant was executed, the District Attorney eventually charged defendant with numerous offenses related to the possession of explosives and explosive materials.  Defendant moved to suppress the evidence obtained from the fire captain's initial, pre-warrant search of the backyard, shed, and cabinet (which, if found to be illegal, would also jeopardize the validity of the resulting search warrant; an issue not discussed).  Upon the trial court’s denial of defendant’s motion, he pled “no contest” to possessing explosives and a destructive device.  Granted probation, defendant appealed.

The Sixth District Court of Appeal, in a split (2-to-1) decision, reversed.  The basic rules are simple enough:  Warrantless searches of a residence are presumed to be invalid.  (Peyton v. New York (1980) 445 U.S. 573, 586.)  The search of the shed in this case is accorded the same protection as defendant’s home, it being located within the curtilage of his home; i.e., the area immediately surrounding and associated with the home, which includes the backyard.  (See Florida v. Jardine (2013) 569 U.S. 1, 6; California v. Ciraolo (1986) 476 U.S. 207, 212.)  A recognized exception to this rule is when “exigent circumstances” require an immediate search.  (Kentucky v. King (2011) 563 U.S. 452, 460.)  An exigency exists when there isn’t time to obtain a search warrant without risking the loss of evidence, escape of a suspect, or, as in this case, “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property.” (People v. Ramey (1976) 16 Cal.3d 263, 276.) A majority of the Court ruled that under the circumstances of this case, while an exigency may have existed upon the initial arrival of the fire department at defendant’s home, it had dissipated by the time the fire captain looked into the cabinet.  Whether or not exigent circumstances exist depends upon what is known by the officer “at the time of the search.”  (People v. Duncan (1986) 42 Cal.3rd 91.)  Using this rationale, the Court found that the fire captain’s entry into the back yard, done for the purpose of attempting to determine whether there was a fire at that location, was reasonable. “That action was reasonable and permissible under the Fourth Amendment because it was premised on a specific, articulated exigency sufficient to justify warrantless entry—a possible house fire.”  But by the time the captain peeked into the cabinet, “the circumstances had changed significantly.”  Not only had it been determined that there was no house fire, but an inspection of the backyard showed that there was no active fire anywhere.  And while there may have been a “persistent odor” of smoke “not consistent with cooking,” there was no actual smoke observed from the house itself, the shed, or anywhere else.  More importantly, there was nothing to indicate that the source of the smoky odor was coming from the shed, let alone the cabinet within that shed. The fact that there was an odor of smoke in the backyard, by itself, “did not rise to the level of an emergency sufficient to bypass obtaining a search warrant for the contents of a cabinet which did not appear to be the source of the smell.”  (Italics in original)  Per the Court, there was nothing to indicate that the “opening of the cabinet in the shed was necessary to avoid imminent danger to life or serious property damage, given that the urgency of the situation had (by that time) dissipated.”  (Italics in original)  “The exigent circumstances exception therefore (did) not extend to the cabinet search.”  The Court, therefore, ruled that defendant’s motion to suppress should have been granted, and remanded the case back to the trial court for further proceedings consistent with this decision.

The dissenting justice argued, basically, that until the source of the smoky odor is found, and until it is insured that there were no dangerous chemicals in the cabinet, the fire captain acted reasonably in continuing to poke around the premises without a warrant.  At least, that’s what I think he said, he interpreting that facts—as well as the majority’s opinion—a bit differently than I do.  For instance, the dissenting justice indicated that the majority opinion approved the search of the shed itself, even if not the cabinet.  (pg. 9.)  The majority never specifically says that, skipping from the search of the yard (which it said was lawful) to the search of the cabinet (which it said was unlawful).   But the dissent does make a logical argument that finding a burned up homemade rocket device in the backyard might indicate that there might be “explosive material” somewhere in that backyard.  It would be logical to assume—as argued by the dissent—that if not visibly present, then explosive material might be in the shed, and then in cabinet in that shed.  The issue then becomes whether an exigency continued to exist that excused the failure to take the time to get a search warrant.  The majority says “no.”  The dissent argues that as long as there is the mere possibility that something—still unidentified—might still be smoldering (causing the smoky odor) somewhere in the backyard, any explosive material that might be in that cabinet, might be in danger of being ignited.  The dissent argues that for this reason, an exigency continued to exist.  The majority argues, in effect, that that’s a lot of “mights,” that the dissent’s reasoning is a bit of a stretch, and that it is not enough to constitute an exigency excusing the lack of a search warrant.  But either way, the majority rules.  So we have to live with it.  I also noted, by the way, that the Court just assumed, without discussing the issue, that a fire department official is held to the same search and seizure standards as a law enforcement officer.  If you were wondering about that, as I was, note that there is actual authority for this argument.  In Michigan v. Tyler (1978) 436 U.S. 499, at pg. 503, for instance, the U.S. Supreme Court noted that “any entry onto fire-damaged private property by fire or police officials is subject to the warrant requirements of the Fourth and Fourteenth Amendments.”  (Italics added.) So there’s the answer.

• Terry Stops; Detentions for Investigation
• Consensual Encounters
• Patdown Searches for Weapons

A police officer who observes unusual conduct leading him reasonably to conclude in light of his training and experience that criminal activity may be afoot, may temporarily detain the suspicious person for the purpose of making reasonable inquiries aimed at confirming or dispelling his suspicions.  A person is not detained (but rather “consensually encountered”) unless and until a reasonable person under the circumstances would not have felt free to leave.  A patdown for weapons is limited to feeling a detained person’s outer clothing.  Reaching into a person’s pockets exceeds the limits of a patdown, and is illegal unless a possible weapon is felt thus causing a police officer to reasonably believe the person may be armed.

Uniformed El Cajon Police Department Officers Robert Wining and Robert Nasland responded to a radio call at around 11:00 a.m. on November 15, 2017, directing them to check two “transients” in a motel parking lot.  The dispatcher directed the officers to look for a white male who had a bike and who was urinating in the bushes.  The other person was described only as a female.  Upon arrival in their marked patrol car, they found the parking lot to be pretty much empty. But around behind a parked U-Haul van, along a cinderblock retaining wall, the officers found two men, later identified as Jon Barlett and defendant James Brown.  As the officers approached (turning on their bodycams as they did so), the subjects both had what Officer Wining later described as a surprised “deer-in-the-headlights look.”   Barlett—a white male with a bicycle—fit the description of one of the two subjects described in the radio call.  Defendant—a black male and without a bike—did not.  But being the only two people in the lot, the officers got out of their patrol car and made contact anyway.  Greeting the two subjects with “Howdy, guys,” and asking; “What are we up to today?”, defendant responded that he was getting “stuff” out of the van.  Barlett said he was merely helping.  When told that the motel had called about Bartlett urinating in the bushes, he responded: “They didn’t see me.” (Note the lack of any denial that he was the “urinator” [a word I just coined].)  Identification was requested and general questioning continued concerning what they were doing in the parking lot during which it was determined that defendant (but not Bartlett) was staying at the motel.  Officer Wining—a 22-year veteran of the police department—eventually just asked bluntly: “So, do we have a drug deal going on here, or what do we got going?” While Barlett mumbled an unintelligible response, defendant responded; “A drug deal? No, sir.”  Told that drug dealing was not uncommon in the area, and that he didn’t need to look so surprised, defendant—getting a bit nervous—responded:  “Didn't you say your call was for him urinating in the bushes; what does this got to do with me?”  Ignoring defendant’s apparent attempt to push the officers’ attention onto Bartlett, Officer Wining asked if they had any outstanding warrants.  Defendant said he did not while Bartlett admitted to having “just cleared up some.”  Pointing to the visible needle marks on Bartlett’s arms, Officer Wining asked him whether he was using heroin. Barlett responded: “Not anymore,” and acknowledging that he “ha[d] a history of it.”  About then, defendant’s cellphone rang.  Defendant answered it, engaging in a nearly minute-long casual conversation uninterrupted by the officers, laughing at one point at something the caller said. The questioning resumed after defendant ended his phone call.  Officer Wining continued the questioning, asking about an expensive gold watch Bartlett was wearing (“bought it at Walmart”) and a small Leatherman-brand multi-tool that was still in its original packaging (“found it under a bridge”). Officer Wining asked if Barlett was selling the Leatherman tool to defendant, to which Barlett claimed he was not. While this discussion was going on, and after the contact had lasted about seven minutes, Officer Wining observed defendant suddenly “put his hands down to his sides,” and “reach his index finger into his right pocket.”  As Officer Wining walked over to him, defendant raised his hands and said: “Oh, my bad, man, my bad.”  Defendant, who had been sitting on the block wall, was ordered stand up and turn around, telling him; “I saw you reaching in that pocket.” When defendant denied doing so, Officer Wining responded; “Yeah, you were.”  Defendant complied with Officer Wining’s instructions and submitted as the officer secured defendant’s arms behind his back in a finger hold. Pointing with his free hand to defendant’s pants pocket, Officer Wining asked: “What's in here?” Defendant responded that he was “not quite sure.”  Officer Wining then stated; “I’m going to check, OK?”, to which defendant grunted a monosyllabic unintelligible response.  Officer Wining then reached into defendant’s pocket and pulled out a plastic bag which defendant claimed to be coffee, but which the officer recognized as heroin.  Officer Wining conducted a more thorough search of defendant’s person, finding several thousand dollars, a number of unused syringes, and “suboxone strips” (used to treat opioid withdrawal).  Charged in federal court with one felony count of possession of 35.35 grams of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), defendant’s motion to suppress the items found on his person was denied by the district (i.e., trial) court.  Convicted by a jury, defendant was sentenced to 3 years and 5 months in prison.  Defendant appealed.

The Ninth Circuit Court of Appeal reversed.  Upon appeal, the Court discussed two issues; i.e., the lawfulness of defendant’s detention and the search of his person. 

(1)  A “Terry Stop” Detention:  Searches and seizures, including the seizure of one’s person, are “per se” unreasonable absent prior approval by a judge.  One exception to this rule as it relates to the seizure of a suspect’s person is what is sometimes referred to as a “Terry stop;” i.e., a “temporary detention for investigation.”  (Terry v. Ohio (1968) 392 U.S. 1.)  “Under the authority recognized in Terry, a police officer who ‘observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot’ may ‘briefly stop the suspicious person and make ‘reasonable inquiries’ aimed at confirming or dispelling his suspicions.’”  (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.)  However, not every contact between a law enforcement officer and a person on the street qualifies as a detention.  “A seizure does not occur simply because a police officer approaches an individual and asks a few questions.” (Florida v. Bostick (1991) 501 U.S. 429, 434.)  With defendant arguing that Officers Wining and Nasland illegally detained him, the Court here found that defendant was not detained at all until that point in time when he was ordered by Officer Wining to stand up and turn around.  Until then, defendant was merely the subject of what is commonly known as a “consensual encounter.”  Under the circumstances of a consensual encounter, there is no constitutional prohibition preventing a police officer from walking up to an individual on the street and talking with him, asking for identification, and/or discussing with him his reasons for being at that location.  It is not until the contact “ripens into a seizure” that it becomes a detention.  This does not occur until—in considering “all the circumstances surrounding the encounter”—the “police conduct would have communicated (by his words or actions) to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” (Florida v. Bostick (1991) 501 U.S. 429, 439.)  In this particular case, the Court held that defendant was not detained until Officer Wining ordered him to stand away from the retaining wall and turn around.  By giving this order, Officer Wining “affirmatively assert[ed] authority over [defendant’s] movements.”  Until then, nothing had occurred between the officers and defendant (it being in the middle of the day, in full “public view,” where defendant was already seated, during which he was allowed to answer his cellphone, and where he showed no inclination to depart) that would have caused a reasonable person in defendant’s position to feel like he had to remain at that location and submit to the officers’ questioning.  But by that time, Officer Wining had developed enough information, based upon his training and his 22 years as a law enforcement officer—capped by defendant’s sudden movement towards his pocket which, as noted by the Court, triggered some safety concerns—that reasonably caused the officer to believe that defendant might be trafficking in drugs.  The Court therefore held that defendant’s detention at that point was lawful. 

(2) The Search of Defendant’s Person:  Analyzed separately—although recognized as an element of a lawful “Terry stop”—is the right of a police officer to patdown (i.e., “frisk”) a lawfully detained suspect (who is “at close range”) for possible weapons whenever the officer reasonably believes that the person may be carrying a weapon.  (Minnesota v. Dickerson, supra.)  In determining the lawfulness of a patdown for weapons, just as when determining at what point in time an officer has enough information to lawfully detain a suspect, that same officer is allowed to draw on his “own experience and specialized training to make inferences from and deductions about the cumulative information available to (him) that ‘might well elude an untrained person.’”  (United States v. Arvizu (2002) 534 U.S. 266, 273.)  In this case, both the fact of defendant’s abrupt movement towards his pocket and that there was a reasonable suspicion that he was engaging in drug trafficking provided Officer Wining with sufficient reasonable suspicion to believe he might be armed.  Officer Wining, therefore, would have been justified in patting defendant down for weapons.  However, the officer didn’t stop there.  Rather than limiting his search to patting down defendant’s outer clothing for the feel of what might be a weapon, Officer Wining simply reached into defendant’s pockets, recovering drugs, money, and paraphernalia.  Such a full search of defendant’s person exceeded what the Fourth Amendment allowed Officer Wining to do under the circumstances; i.e., where he only had a reasonable suspicion to believe defendant might be armed.  “(T)he ‘sole justification’ for such a search ‘is the protection of the police officer and others nearby,’ and any such search ‘must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’” (Terry v. Ohio, supra, at p. 29.)  In other words, such a search is limited to patting down the suspect’s outer clothing.  Reaching into the suspect’s pockets constitutes a full search requiring full “probable cause” to believe something sizeable (whether it be contraband or other evidence of a crime) is contained therein.  Without a showing of the necessary probable cause, reaching into the clothing of a detained suspect exceeds the bounds of what otherwise would have been a lawful patdown for weapons.  (Sibron v. New York (1968) 392 U.S. 40; see also Minnesota v. Dickerson, supra, at pp. 375-377.) The Court therefore found that defendant was unlawfully searched (and not just patted down) in violation of the Fourth Amendment, requiring the resulting evidence to be suppressed.   On this basis, the district court’s denial of defendant’s motion to suppress was error.

There is a gaping hole in this case; the Court failing to discuss whether Officer Wining had sufficient “probable cause” to justify a full body search for evidence of a crime, either as incident to arrest or immediately preceding defendant’s arrest, either alternative being lawful.  The record, as reported in this case, fails to tell us what Officer Wining’s thinking was when he reached into defendant’s pockets.  One can only assume that Officer Wining—not a rookie and presumably aware that checking for weapons is limited to a patdown of the suspect’s outer clothing—believed that he had probable cause to believe defendant had contraband in his pockets and/or sufficieint probable cause to arrest him for drug trafficking.  We can also assume—given the Court’s failure to discuss the issue—that the Government decided not to argue the existence of probable cause at the district (trial) court level, thus forfeiting this issue on appeal.  The same goes for whether Officer Wining perhaps believed he had defendant’s consent to search his pockets, after having said to defendant; “I’m going to check, OK?”, getting in response what the Court described as mumbled and “unintelligible,” but what Officer Wining may have understood as consent.  (See fn. #3 in the written decision, noting the Government’s failure to argue the issue of consent.)  With these assumptions, we can make one more assumption; and that is that Officer Wining did not have either consent or sufficient probable cause to either do a full body search or arrest defendant under these circumstances.  As the facts were reported, that’s an assumption with which I find hard to argue, even though some discussion of these issues by the Court would have been appreciated.

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

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

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

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

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

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

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

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

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

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

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

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