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• Disturbing the Peace, per P.C. § 415(2)
• Delaying or Obstructing a Peace Officer per P.C. § 148(a)(1)
• Arresting for the Wrong Offense
• Refusal to Identify as a Violation of P.C. § 148(a)(1)
• Arresting for a Misdemeanor That Did Not Occur in the Officers’ Presence
• Civil Liability and Qualified Immunity

(1) For a federal civil rights lawsuit to be sustained, a plaintiff must prove that law enforcement officers violated a federal statutory or constitutional right and that the unlawfulness of their conduct was clearly established at the time. 

(2) So long as there is probable cause supporting an arrest for some offense, it is legally irrelevant that the arresting officers may have chosen the wrong offense. 

(3) A finding of probable cause requires only that there be a fair probability or substantial chance that an arrestee committee a crime. 

(4)  Speech that causes a clear and present danger of imminent violence and was designed to disrupt a lawful endeavor constitutes a violation of Pen. Code § 415(2). 

(5) A detainee who refuses to identify himself may be in violation of Pen. Code § 148(a)(1); delaying or obstructing a peace officer in the performance of his or her duties. 

(6) Police officers are not constitutionally precluded from arresting for a misdemeanor that did not occur in their presence. 

(7) Absent a viable constitutional violation by its officers, a city is not civilly liable for failing to properly train them.

Javier Vanegas and his estranged wife, Sandra Kerguelen, were in the process of getting a divorce.  Kerguelen had an attorney—Karen Suri—while Vanegas was winging it on his own, and apparently not doing a very good job at it.  At a hearing in Pasadena’s family court, after Venegas “raised his voice and yelled” at his wife’s attorney and the judge, the judge had to admonish Vanegas to control himself or face sanctions.  Attorney Suri was so concerned that she asked the court bailiff after the hearing to keep Vanegas from following them as they left.  The bailiff did so, blocking Vanegas’ way as Suri and Kerguelen left the courthouse.  But Vanegas eventually caught up with them outside and renewed his verbal onslaught.  Suri and Kerguelen tried to walk away, but Vanegas continued to follow them, getting in Suri’s face (“within arm’s reach”) while calling her a “scumbag” and a “liar.”  Feeling threatened, Suri called 911, reporting to the operator that there was a man following her and yelling at her on the street in front of the courthouse. A Pasadena Police Department Community Service Officer, who happened to be in the area, saw the confrontation and intervened.  He told Suri and Kerguelen to walk to the police station across the street to file a report, which they did.  In the meantime, Pasadena Police Officer Philip Klotz—in the courthouse on other business—heard the call over his radio.  The call came out identifying the cause of the disturbance as “Javier Vanegas” and who was reported to be walking northbound on Garland Avenue.  The officer exited the courthouse looking for Vanegas.  Seeing only one man in the vicinity, he approached that man (who was in fact Vanegas) and asked him if he was Javier.  Vanegas failed to answer the question, asking the officer instead who he was (the officer apparently being in plain clothes).  Officer Klotz identified himself as a law enforcement officer and then asked Vanegas for identification.  Despite at least three requests for identification, Vanegas refused to comply, taking out his cellphone to record the interaction instead.  Officer Klotz then gave Vanegas the option of either producing his identification or being placed in handcuffs.  Vanegas continued to refuse to comply.  Upon the arrival of other officers, Vanegas was handcuffed.  Suri returned to the scene (still “almost crying and visibly shaking”) and identified Venegas.  He was therefore arrested for disturbing the peace, per Pen. Code § 415(2).  He was later released from the police station on a misdemeanor citation for violating Pen. Code § 148(a)(1); obstructing a peace officer.  The Pasadena City Attorney, however, wimped out and declined to file charges.  Emboldened by this, Vanegas filed suit in federal court (under authority of 42 U.S.C. § 1983) against the officers involved in his arrest—along with the City of Pasadena—alleging a violation of his Fourth (seizure) and Fourteenth (due process) Amendment rights.  The federal district (trial) court granted the civil defendants’ motion for summary judgment (dismissing the case), ruling that Vanegas was lawfully arrested for either Pen. Code §§ 415(2) or 148(a)(1), thus negating any claim that his constitutional rights had been violated.  Vanegas appealed.

The Ninth Circuit Court of Appeal Affirmed. 

(1) General Civil Liability Requirements:  In order to prevail in his lawsuit, Venegas was required to show that the “(1) Pasadena police officers ‘violated a federal statutory or constitutional right’ and (2) ‘the unlawfulness of their conduct was clearly established at the time.’” (District of Columbia v. Wesby (2018) 138 S.Ct. 577, 589.)  To meet the first requirement, Venegas had to prove that he was arrested without probable cause.  The civil defendants (the officers and the City) argued that the officers had probable cause to arrest him for either or both of two offenses; Pen. Code §§ 415(2) (disturbing the peace), and/or 148(a)(1) (delaying or obstructing a peace officer).  (See Section (5), below, for a discussion of the second requirement.)

(2) Arresting for the Wrong Offense:  Upon discussing the two possible offenses, it was first noted that so long as there is probable cause supporting his arrest for some offense, it is legally irrelevant that the officers may have chosen the wrong offense.  “It is well-established that ‘[i]f the facts support probable cause . . . for one offense,’ an arrest may be lawful ‘even if the officer invoked, as the basis for the arrest, a different offense’ which lacks probable cause.”  (United States v. Magallon-Lopez (9th Cir. 2016) 817 F.3rd 671,  675; see also People v. McDonald (2006) 137 Cal.App.4th 521, 530.) 

(3) Probable Cause:  When considering whether the officers had probable cause to arrest Vanegas, the Court defined the term “probable cause” as a “‘fair probability or substantial chance of criminal activity’ by the arrestee based on the totality of the circumstances known to the officers at the time of arrest.” (Lacey v. Maricopa County (9th Cir. 2012) 693 F.3rd 896, 918.) With these basic principles in mind, the Court discussed the two offenses at issue.

(4)  Pen. Code § 415(2):  Subdivision (2) of section 415 reads as follows:  “Any person who maliciously and willfully disturbs another person by loud and unreasonable noise” is guilty of a misdemeanor. “Maliciously” means a wish to “vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.”  “Willfully” means “a purpose or willingness to commit the act.”  (Pen. Code § 7, subdivisions (4) and (1), respectively.)  It has been held that getting in someone’s face and yelling at them, calling them names, constitutes a violation of section 415(2) where the suspect’s “speech . . . present(s) a clear and present danger of imminent violence and was designed to disrupt a lawful endeavor.”  (In re Curtis S. (2013) 215 Cal.App.4th 758, 763.) In this case, the victim Karen Suri reported to the officers that Vanegas followed her and shouted at her, getting to within arm’s reach of her while calling her names, causing her to feel threatened.  These allegations were supported by the officers’ observation of Suri being extremely upset and visibly shaking.  The Court concluded that “(b)ased on the collective knowledge of the officers, there was a fair probability that Vanegas’s verbal actions constituted ‘a clear and present danger of imminent violence’ and a ‘disrupt[ion of] lawful endeavors.’”  Under these circumstances, the officers had probable cause to arrest Vanegas for disturbing the peace pursuant to Pen. Code § 415(2). 

(5)  Pen. Code § 148(a)(1):  Vanegas was eventually cited for a violation of Pen. Code § 148(a)(1) and released from the police station.  Section 148(a)(1) is a misdemeanor which punishes “[e]very person who willfully resists, delays, or obstructs any public officer [or] peace officer, . . . in the discharge or attempt to discharge any duty of his or her office or employment.”  The civil defendants alleged that Vanegas violated this section by refusing to identify himself, arguing that “his refusal to identify himself obstructed Officer Klotz’s investigation of a potential stalking case.”  Vanegas countered with the argument that refusing to identify oneself is not a violation of Pen. Code § 148(a)(1) and, as such, it was illegal to arrest him for this section (a misdemeanor citation being an “arrest and a release” on one’s promise to appear in court on a later date).  This situation brings into play the above-mentioned rule (see Section (1), above) that in order for Venegas to prevail in his civil suit, not only must he prove that the officers violated a federal statutory or constitutional right (that being a Fourth Amendment unlawful arrest in this case), but he must also prove that “the unlawfulness of their conduct was clearly established at the time.”  If the rule is not “clearly established,” then a civil defendant law enforcement officer is entitled to what is commonly referred to as “qualified immunity” from civil liability.  Reciting an abundance of cases on the issue of whether refusing to identify oneself constitutes a violation of Pen. Code § 148(a)(1) (Vanegas being detained for investigation at that point in time when first contacted by Officer Klotz), it was noted that this is an issue that has never really been “clearly established.”  The existing case law on this issue tends to go both ways, or merely notes that no one really knows whether or not a detainee refusing to identify oneself constitutes a violation of Pen. Code § 148(a)(1).  As such, with the courts unable to establish a rule on this issue, the arresting officers in this case cannot be held to have known whether or not a detainee who refuses to identify himself is in fact a violation of 148(a)(1).  Per the Court: “No ‘controlling authority’ or ‘robust consensus of cases’ prohibited Officer Klotz from arresting Vanegas under the facts confronting him.”  The officers, therefore, are entitled to qualified immunity on this issue. 

(6)  Arresting for a Misdemeanor that Did Not Occur in the Officers’ Presence:  In what the Court refers to as a mere “wrinkle” in the legal analysis of this case, it was noted that whether Vanegas was arrested for Pen. Code §§ 415(2) or 148(a)(1), doing so violated California’s statutory requirement that an officer can arrest for a misdemeanor only if that misdemeanor occurred in the officer’s presence.  (See Pen. Code § 836(a)(1).)  In this case, by the time Officer Klotz got involved, the defendant’s crime had already occurred.  It did not occur in Officer Klotz’s presence.  However, the Fourth Amendment has no such limitation.  The “in the presence” rule is a California statutory requirement only, and not one that “is . . . grounded in the Fourth Amendment.”  (See Welsh v. Wisconsin (1984) 466 U.S. 740, 756; and Barry v. Fowler (9th Cir. 199) 902 F.2nd 770, 772.)  In other words, while arresting for a misdemeanor that did not occur in the officer’s presence may violate Pen. Code § 836(a)(1), it does not also violate the Fourth Amendment.  “Rather, the ‘crucial inquiry’ is whether Officer Klotz had probable cause to make the arrest. . . . Here, we hold that he did.”  There being no constitutional violation, no sanctions, including potential civil liability, may be imposed.

(7)  Conclusion, and Monell Liability:  The Court held that the district court properly granted the civil defendants’ motion for summary judgment, dismissing the case.   This included that portion of the lawsuit alleging that the City of Pasadena was civilly liable pursuant to Monell v. Department of Social Services of the City of New York (1978) 436 U.S. 658.  Monell provides for a city’s civil liability for its employees’ constitutional violations when a plaintiff can establish that “the local government had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation they suffered.”  This theory is commonly used whenever it is shown that municipality failed to properly train its officers.  Venegas had no such proof in this case. 

For a relatively simple factual situation, this case touches on a whole bunch of legal issues about which I get questions with some regularity.  Aside from (1) the “qualified immunity” issue, used to protect law enforcement officers from civil liability in those areas of the law where they cannot be expected to know the rules, the Court talks about (2) arresting for misdemeanors that occurred in other than the officer’s presence, (3) officers charging the wrong offense, and (4) whether refusing to identify oneself in a detention situation is a crime.  (Note, by the way, it is well-settled law that a person who is only being “consensually encountered” is under no legal obligation to identify himself.  See Kolender v. Lawson (1983) 461 U.S. 352.)  As for this last issue, I have always maintained that Pen. Code § 148(a)(1) is in fact violated where a detainee refuses to identify himself under the theory that such a refusal obviously (at least in most cases) delays or obstructs the officer in the performance of his or her duties.  This to me is a no-brainer.  But the courts in general are undecided on this issue.  The Court here, in about ten pages of concurring opinions, debates this issue, noting in the end that no real consensus among the lower appellate court cases can be found.  What we need, then, is either a California or U.S. Supreme Court decision resolving all this ambiguity.  I’m waiting.  And when I’m proven to be right, I’ll report it to you.

For additional information, please see these articles by Professor Emeritus Ray Hill:  “Stale or Cold Misdemeanor Rule - A Fossil" 3/1/22, CAB00139 and "Stale or Cold Misdemeanor Rule - An Update" 4/28/22 CAB00146

• Miranda and a Suspect’s Invocation of his Right to Counsel
• Understanding the Miranda Right to Counsel
• Badgering a Suspect Out of an Invocation

Indications that an in-custody suspect does not understand what benefits there may be to the assistance of counsel may negate that suspect’s waiver of his Miranda rights.  An in-custody suspect who invokes his Miranda rights has the option of changing his mind.  Encouraging an in-custody suspect to change his mind about his prior invocation (i.e., “badgering”), however, may negate that change of mind.

Eighteen-year-old defendant Ismael Avalos had an on-going dispute with Angel Rivera, both alleged members of opposing criminal street gangs.  Their dispute was only aggravated when Rivera took up with Avalos’ ex-girlfriend; A. Albarran.  Defendant at the time of this case was a high school student, still living with his parents, who had no prior criminal record except for “some dumb thing” (not otherwise described) he’d done as a minor.  On May 25, 2012, defendant spent the afternoon drinking beer in his family’s garage with a friend; George Galvan.  After apparently drinking all day, Galvan drove defendant and several other homies to a cul-de-sac—Mayfair Street, in Anaheim—where some 15 to 20 other young people were hanging out.  Amongst the group at the cul-de-sac were Rivera and Albarran.  Without warning, defendant and another companion walked up to Rivera, drew firearms from their respective waistbands, and fired twice each, killing Rivera with a gunshot wound to the head.  Defendant and the companion ran back to Galvan’s car and went home, defendant bragging to Galvan that he’d “lit some fool up,” and “dumped on someone.”  An investigation quickly led to defendant as one of the shooters, resulting in his arrest the next day.  He was taken to the Anaheim Police Department where he was questioned by Detectives K. Schroepfer and J. Trapp in separate videotaped interviews.  Det. Schroepfer started off the interrogation during which defendant was handcuffed to a table.  Without beating around the bush, Det. Schroepfer read defendant his Miranda rights at the very beginning of the questioning.  The detective obtained defendant’s acknowledgement that he understood each of the rights, one by one, as she read them to him.  (Good interrogative technique, by the way.)  However, when told that he had “the right to the presence of an attorney before and during any questioning,” and asked if he understood that right, defendant said in response; “What do you mean an attorney like . . .”  (The remainder of this comment was unintelligible, with the detective and defendant talking over each other.)  After Det. Schroepfer re-read the admonition, defendant asked: “That means that (unintelligible) someone can tell me something like (unintelligible).” The detective responded: “Like an attorney.”  When pressed for a yes-or-no response, defendant finally said he understood.  Upon completion of the advisal (and without asking for an express waiver), Det. Schroepfer began the interrogation.  For the next five hours of questioning—first by Det. Schroepfer and then Det. Trapp—defendant denied any involvement in the murder except to admit that he had been present at the scene.  This interrogation was interrupted at one point so that a forensic technician could take defendant’s clothing, giving him a paper gown to wear.  The interrogation was later interrupted again so that defendant could speak with his parents who, upon defendant’s continued denial of guilt, told him that they were going to get him an attorney. When Det. Trapp renewed her interrogation—playing on his mother’s crying as she left the police station—defendant commented; “I can't talk to a lawyer or nothing or what?”  When told that he could, defendant invoked his right to the assistance of counsel.  Specifically:  “Can I talk to a lawyer? . . . Yeah. That's what I wanna do. I wanna talk to a lawyer.”  Defendant then asked; “Think that’s a good choice or not?  Det. Trapp responded with: “That’s, that’s . . . I, I can't make that choice for you. That's something that you have to decide.”  But then, after telling defendant she (Det. Trapp) was going to take him down to the bathroom, she continued on: “You know what, go down (sic) you think about it, you know, if you think that’s the right choice for you, great, you know.” She then added: “All I’m saying is, is, is I respect your decision that you wanna talk to a lawyer, but if for some reason you change your mind and you wanna talk to me, you can, just ask for me. I don't care if it's 2:00, 3:00 in the morning I’ll come back. Okay? Because I care about you getting your story the right way out. Okay?”  The next day, while still in an Anaheim P.D. holding cell and still in his paper gown, defendant told the jailer that he wished to talk to the detectives again.  So he was brought back up to the same interrogation room.  A third detective— Det. S. Wyatt—first contacted defendant there.  After insuring that defendant was warm enough (still in his paper gown, without shoes or socks, and having spent the night in an apparently cold holding cell), and that he was “good with (his) drink,” defendant indicated that he had a question.  Defendant then asked:  “Whatever I tell my lawyer, he's going to tell you the same thing, right?”  Det. Wyatt responded: “Not necessarily, I . . . (unintelligible) umm, I want to talk to you about that.”  Det. Schroepfer took over for Det. Wyatt, verifying that he had told Det. Trapp the evening before that he wanted to talk to a lawyer before proceeding.  Defendant then asked: “It make a difference if I talk to a lawyer first or you guys?”  Det. Schroepfer responded:  “You know, I can’t tell you either way, it, that makes, you know, that’s your decision but since you did asked (sic) for a lawyer, I want to understand is you contacted umm one of the jailers and asked to talk to the detectives again. [[sic]]. Is that right?”  Defendant responded: “Yes.”  After verifying that the decision to talk to the detectives was of his own “free will” and that no one was “forcing” him, or that he had been “promised . . . anything,” Det. Schroepfer re-read defendant his Miranda rights, getting a statement of understanding after each right was recited, including his “right to the presence of an attorney before or during any question (sic).”  Defendant responded with an unequivocal “yes” to this question.  Again without an express waiver (see Note, below), defendant then proceeded to admit to shooting Rivera, but claimed it was in self-defense; that it appeared that Rivera was about to draw a weapon, and that he “fear(ed) for my life,” so he “just shot him.”  Per defendant: “I self-defended myself, you know?” After some further discussion concerning his prior history with Rivera, and who the other shooter might have been, defendant eventually invoked his right to counsel again (“I don't want to say anything more until I see my lawyer.”), ending the interrogation.  Charged in state court with murder, defendant’s recorded confession (or more correctly, “admissions,” in that while he admitted to killing Rivera, he claimed it was in the lawful exercise of his right to self-defense) were allowed into evidence against him.  He was convicted and appealed.

The Fourth District Court of Appeal (Div. 3; Orange County) reversed.  On appeal the issue was whether defendant’s confession should have been suppressed.  The basic rules related to the Miranda decision are well settled.  Before questioning an in-custody suspect, he must first be advised of, understand, and waive, his Miranda rights.  (Miranda v. Arizona (1966) 384 U.S. 436.) “To establish a valid [Miranda] waiver . . . , the prosecution must show . . . the waiver was knowing, intelligent, and voluntary. . . . Determining the validity of a Miranda rights waiver requires ‘an evaluation of the defendant’s state of mind’ [citation] and ‘inquiry into all the circumstances surrounding the interrogation.’”  (People v. Nelson (2012) 53 Cal.4th 367, 374-375.)  If at any point during the interrogation the suspect indicates that he wants to speak to an attorney, the police cannot question him any further “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”  (Italics added: Edwards v. Arizona (1981) 451 U.S. 477, 484-485.)  The issue here was whether defendant himself reinitiated the interrogation, or was it at the behest of Det. Trapp. It was undisputed here that defendant clearly and unequivocally invoked his right to counsel when he said: “That’s what I wanna do. I wanna talk to a lawyer.”  Upon doing so, Det. Trapp properly terminated the interrogation.  But in so doing, she also told defendant that should he change his mind, she was available at any time to come back and talk to him.  As a general rule, there is nothing wrong with letting an in-custody suspect know, after an invocation, that he can change his mind so long as it is clear that it is the defendant’s decision—without being influenced by law enforcement—as to whether he chooses to do so.  But there is a thin line between so informing a suspect and improperly encouraging (sometimes referred to as “badgering”) a suspect into changing his mind.  “‘(A) change of mind prompted by continued interrogation and efforts to convince the defendant to communicate with the officers’ cannot be considered a voluntary, self-initiated conversation.” (Quoting People v. McClary (1977) 20 Cal.3rd 218 at pp. 226-227.)  In the unique circumstances of this case, it was noted that from the very beginning, defendant (an 18-year old high school student with no criminal history) seemed to have some difficulty understanding that portion of the Miranda advisal related to his right to the assistance of counsel. (“What do you mean an attorney like (unintelligible) . . .”)  Later, before invoking, defendant continued to express some confusion concerning his right to an attorney, telling Det. Trapp:  ““I can't talk to a lawyer or nothing or what?”; a question that was never really answered for him. The next morning, defendant still seemed confused as to the role an attorney might play. (“Whatever I tell my lawyer, he's going to tell you the same thing, right?” And: “It make a difference if I talk to a lawyer first or you guys?”)  The Court was particularly critical of Det. Trapp’s comments made upon defendant’s initial invocation, where she told him: “(B)ut if for some reason you want to change your mind and you wanna talk to me, you can, just ask for me. I don't care if it's 2:00, 3:00 in the morning I'll come back.  Okay?  Because I care about you getting your story the right way out. Okay?"  (Italics in original)  Such encouragement, at least under the circumstances of this case, was a bit too much for the Court, tipping the scale in the direction of an improper attempt to talk defendant into changing his mind after his otherwise clear and unequivocal invocation.  In finding that Det. Trapp pushed a bit too hard by telling defendant that he could always change his mind about his invocation, while emphasizing that she wanted to help him get his side of the story out, the Court further summarized its conclusions as follows:  “Here, given Avalos’s state of mind and the surrounding circumstances (Avalos was in high school with no record of prior arrests, his confusion about the role of a detective versus a lawyer, the apparent coldness, his clothes being taken away, and he . . . wearing a paper gown), we find Avalos did not make a voluntary, knowing, and intelligent Miranda waiver prior to the second interview. Further, given the detective’s statement encouraging Avalos to speak to her because she cared about him getting his ‘story the right way out’—after he had invoked the right to counsel—it appears the detective, rather than Avalos, initiated the second interview.”  For these reasons, the Court held that defendant’s confession should have been suppressed.  Finding that the trial court’s failure to suppress his confession was prejudicial, the Court reversed his conviction and remanded the case back to the lower court for retrial.

There were actually two issues central to this case: (1) Whether defendant’s Miranda waiver was “knowing and intelligent” when he repeatedly expressed some confusion about what his right to the assistance of counsel entailed. (2) Was he “badgered” into changing his mind about invoking his rights?  The first issue was kind of lost in all the verbiage of this case while the second was discussed in excruciating detail.  In the end, I’m not so sure I agree with the results of this case, nor its nitpicking.  But either way, the circumstances underlying defendant’s change of mind about his initial invocation are important to note.  It would have helped, for instance, had the detectives recognized his apparent confusion concerning his right to counsel and what an attorney could do for him.  A more thorough explanation (assuming a police interrogator explains it clearly and correctly) might have resolved that issue.  It would also have helped had Det. Trapp not laid it on quite so thick that he (defendant) could always change his mind and that she was available to come back 24/7 to talk to him, while telling him that she wanted to help him get his side of the story out.  I’m not criticizing either detective here, by the way.  They did everything by the book (and more) as they understood it, and as they have been trained.  However, they did create a third issue that wasn’t even discussed by the Court, apparently not having been contested by the defendant.  In both admonishments, defendant’s interrogators relied on “implied waivers,” not having asked for an “express waiver” (i.e., “Having in mind, and understanding your rights, are you willing to talk to us?).  More times than not, we can get away with an implied waiver. But when you’re dealing with an 18-year-old high school student with no prior adult criminal record, particularly when he doesn’t appear to be the sharpest tool in the shed and is clearly in over his head, it is an issue whether or not he really was agreeing to waive his rights merely from the fact that he did in fact answer an interrogator’s questions. (E.g., see People v. Rios (2009) 179 Cal.App.4th 491; “A court should look at whether the minor ‘was exposed to any form of coercion, threats, or promises of any kind, trickery, or intimidation, or that he was questioned or prompted by . . . anyone else to change his mind.’ (Citation)” (pg. 500.)  But on the issues this case decision does cover, the Court’s conclusions are really a bit of a surprise, given the detectives’ honest attempt to do everything correctly and legally.  It does demonstrate, however, how thin that line is between merely telling a suspect that you (as his interrogator) are available should he change his mind, and “badgering” him into doing so.  So I’d continue to tell a suspect that he has the right to change his mind about an invocation, but supplementing that admonition with no more than merely giving him your business card. Certainly do not try to elaborate on some alleged benefits to changing his mind.  Keep it short, simple, and to the point, and you should be okay.

• Parole Fourth Waiver Searches
• Fourth Waiver Searches of Vehicles
• Vehicle Searches Based Upon the Presence of a Parolee/Passenger

Upon discovering that a passenger of a vehicle is subject to a waiver of his Fourth Amendment Search and Seizure rights, an officer may search those areas of a vehicle where it is reasonable to believe, under the circumstances, that the Fourth waiver subject may have hidden contraband, while taking into consideration the privacy interests of the driver/owner of the vehicle. 

Defendant Brandon James Claypool was observed by police driving his Honda Accord in a high crime/gang area (unknown what time of day or night) with two passengers later identified as Malcolm Clay, sitting in the front passenger seat, and Carlos Olivia, in the rear seat on the passenger’s side.  Observing the front passengers in the car to “be leaned back” as it passed the police car going in the opposite direction, the officers did a U-turn and followed the Honda.  No observations were made, however, of anything being exchanged between the front and rear passengers.  The Honda did an “abrupt turn” onto a side street and stopped in front of a residential driveway.  Blocking the driveway being a violation of V.C. § 22500(e)(1), the officers pulled up behind it and stopped.  Upon contacting the vehicle’s occupants, it was noted that defendant (the driver) had the car keys (along with a cellphone and a wallet) in his lap.  The Honda’s engine had been turned off.  Observed in plain sight in the back seat near Olivia was an open bottle of cognac which Olivia acknowledged was his.  Olivia also told the officers that he was on parole (thus subject to warrantless/suspicionless searches).  Deciding to do a parole search of the car, all three subjects were asked to exit the vehicle.  Defendant was told to put his keys on the dashboard as he got out of the car.  Clay (the front passenger) appeared to be visibly sweating and nervous.  When asked if there was a gun in the car, one of the officers testified that he “thought” Clay responded, “I don't know.” Retrieving the car keys from the dashboard, the officers used them to open the locked glovebox.  A loaded pistol was found therein.  Defendant was charged in state court with a number of firearms and ammunition-related offenses.  His motion to suppress the evidence was denied by the preliminary hearing magistrate, and then again by the trial court.  Defendant appealed.

The Third District Court of Appeal reversed.  The issue on appeal, as it was at the prelim and in the trial court, was the legality of the warrantless vehicle search based upon the parole status of a passenger in the car.  The landmark case decision relevant to this issue is the California Supreme Court case of People v. Schmitz (2012) 55 Cal.4th 909.  In Schmitz, a male passenger in the front seat was on parole and thus subject to search and seizure conditions (commonly referred to as a “Fourth waiver,” and as are all parolees in California).  Defendant was the driver (and presumably the owner) of the car.  In the back seat was a woman with a child.  In the back with her was a woman’s purse, a bag of chips, and a pair of shoes.  Officers searched the vehicle based upon the front seat passenger’s Fourth waiver.  Upon doing so, a syringe cap was found in the purse, two syringes were found in the chips bag, and some methamphetamine was found in the shoes.  The California Supreme Court upheld the search of the chips bag while taking into account the various factors unique to that case.  Of noted relevance in making this decision, the Court took into consideration the lack of any physical barrier between the front and back seats, making it easy for the parolee to reach back and secret the syringes in the bag.  Also, it was noted that “a bag of chips, unlike a purse, was not an ‘inherently private repository for personal items’ with distinct characteristics that tied it to a person; rather, it was often a receptacle for trash.” The Court also noted that “nobody had claimed control over the bag of chips at the time of the search.”  The shoes (containing the meth) presented a closer question for the Court in that it was unclear from the record who owned them and whether they were gender specific. However, since they were on the back seat, the Court held that it was objectively reasonable that (as with the chips bag) the parolee could reach back and hide contraband there. (The search of the purse was not litigated in that the syringe cap was not contraband and the defendant did not seek to suppress them.)  Comparing the instant case with Schmitz, the Court found the circumstances to be significantly different.  The Court ruled that “it does not appear objectively reasonable to believe the back search passenger, Olivia (the parolee), might have secreted a gun in the glove box after he saw the police.”  That is because to do so, it would have taken the involvement of both Clay, in the front passenger seat, and defendant, who had the key to the glovebox in his possession, using them to drive the car.  The “privacy interest” inherent in the contents of one’s glove compartment was also taken into account, as opposed to the chips bag and pair of shoes involved in the Schmitz case.  Neither Clay’s apparent nervousness (for which there could have been any number of reasons), nor his possible comment about not knowing whether there was a gun in the car, was found to be of any significance.  Finding the only relevant issue to be whether Olivia attempted to secret the gun in the glovebox after having noticed the police following them (as opposed to any prior time), the Court ruled that had he attempted to do so, it would have been more likely that he would have stuck it into a more accessible portion of the car (e.g., under the seat) than in a locked glovebox, therefore eliminating the need for assistance from the other occupants of the car.  With the key to the glovebox on the same key chain being used by defendant to drive the car, it was extremely unlikely Oliva tried to hide the gun in that glovebox.  The Court therefore reversed the lower courts’ conclusions on this issue, and remanded the case for further proceedings consistent with this ruling.

Unfortunately, Schmitz has come to be interpreted by many as justification to search the entire interior of a vehicle any time it is found that any occupant of that vehicle happens to be subject to a Fourth waiver.  If you’ve become any kind of a student of the rules of search and seizure, you have no doubt discovered it is never that simple.  For every rule, there are exceptions.  And for every exception, there are more exceptions.  If you go back and read Schmitz, you’ll discover that it is actually very limited in its holding, requiring searching officers to take into account the defendant’s privacy interests involved in the place being searched (e.g., a chips bag and a pair of shoes vs. something like a locked glove compartment as in this case), balancing it with the likelihood that a Fourth wavier subject would have chosen that particular place to secret some form of contraband.  Such a balancing occurred in this new case.  So what do you do when confronted with a Fourth waiver subject as the passenger in someone else’s car?  You ask yourself:  Where is it reasonable to believe, under the existing circumstances, that he (the Fourth waiver subject) might have hidden contraband of some sort upon observing officers following the car he is in, all the while taking into consideration (i.e., performing a “balancing” act) the privacy interests of the driver/owner of the car.  Tough to do, certainly, particularly while considering the fact that you will be second guessed by judges who have a lot more time to consider the issues and do the necessary balancing act.  But that’s why you get paid the big bucks.  All you can really do is take your best shot and see where the chips fall.