Courtesy of James R. Touchstone, Esq.


  1. Information provided by bus driver to sheriff’s deputy sufficient to reasonably justify deputy’s detention of bus passenger to determine whether passenger was the man suspected of committing lewd act on a child.

People v. Stanley, 18 Cal. App. 5th 398 (6th Dist. 2017)

Facts: On the afternoon of May 7, 2015, Santa Clara Sheriff Deputy Brian Tanaka responded to a dispatch telling him that a bus driver had spotted the suspect in “a 288 case” (lewd act on a child) on a Santa Clara Valley Transportation Authority (VTA) bus in San Jose. Deputy Tanaka was aware of the “288 case” because he had seen a report on the news that included a video of the suspect. Tanaka also knew that the sheriff’s department distributed “Be on the Lookout” fliers to VTA bus drivers. Tanaka responded to the bus, which was parked, boarded the bus, and spoke with the driver. The bus driver told Tanaka that he had seen a “picture” on a “Be on the Lookout” flier, and the picture “matched” a passenger on the bus. The BOLO flier, issued by the San Jose Police Department on May 7, 2015, concerned a child sexual assault that had occurred in the afternoon two days earlier in the San Jose area. The flier described the suspect as “WMA, Age: 30, 5’10”, 155 lbs, dark or brown shaggy hair w/beard, tan complexion, black shoes, black socks and a black beanie.” The flier also contained three color photographs, two of which showed the suspect’s face.

Deputy Tanaka had never seen the flier, but he recalled from the video he had seen on the news that the suspect was a white male. The bus driver pointed out defendant Stanley, who was asleep on a seat halfway back on the bus, as the man matching the picture the bus driver had seen on the flier. Tanaka awakened Stanley, identified himself, handcuffed Stanley, and removed him from the bus. Tanaka had Stanley sit on a bus bench outside the bus. Stanley identified himself, and Tanaka learned from dispatch that Stanley was on parole.

Other deputies, who arrived after Tanaka had detained Stanley, had been informed by dispatch of the description given in the flier. Upon their arrival, they observed that, “[j]ust by the descriptors alone, [Stanley] did match.” The deputies were unable to access the flier themselves due to technical problems.

Stanley was subjected to a parole search, which turned up narcotics. About 10 to 15 minutes after the deputies searched Stanley, they received clear photos of the suspect on the flier and determined that Stanley was not the person depicted on the flier.

Stanley was charged with possession of heroin and possession of controlled substance paraphernalia. Stanley moved to suppress the fruits of the search on the ground that Deputy Tanaka lacked reasonable suspicion to detain him. The trial court granted Stanley’s suppression motion and dismissed the criminal action against Stanley after it found that Stanley’s detention by Tanaka was not supported by reasonable suspicion. The prosecution appealed.

Held: The Court of Appeals held that the deputy’s detention of Stanley was reasonable and reversed the trial court’s order. The Court initially observed that “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case.” (People v. Wells (2006) 38 Cal.4th 1078, 1083 [45 Cal. Rptr. 3d 8, 136 P.3d 810] (Wells).) “But to be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.”’ (Citations omitted). The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’” (Wells, at p. 1083.)

Stanley and the trial court had both asserted that the Sixth District Court of Appeal’s prior decision in People v. Walker[1] controlled the result in the current case. In Walker, a sheriff’s detective had circulated an email about a recent sexual assault. The email contained a description of two suspects and surveillance video photographs of the suspects. A deputy who had reviewed the email later spotted and detained defendant Walker. The deputy later testified that he thought the defendant resembled the descriptors in the email. The Court concluded that the deputy’s belief was not objectively reasonable because the only similarities were race, age, and weight. The Court also noted that the poor quality of the surveillance photos could not support reasonable suspicion of the defendant.

The Appellate Court noted that in the present case, unlike in Walker, the evidence presented at the suppression hearing established that Stanley matched not only the age, race, and weight of the suspect but also that he was the same height and had the shaggy hair and beard described in the flier. In addition, in contrast to Walker, the color photographs in the BOLO flier provided good depictions of the suspect’s face. Consequently, the Court rejected the assertion that Walker controlled the current outcome.

Stanley contended that the information the bus driver gave to Deputy Tanaka could not support detention because the information was from a “secondary source,” analogous to an anonymous tip like the one that was found to be insufficient to support a detention in Florida v. J.L..[2] The Court of Appeal disagreed. The Court noted that the Supreme Court had long rejected the argument that a detention could only be based on the officer’s personal observation, rather than on information supplied by another person. The Appellate Court considered the bus driver to be a “true citizen informant” because he voluntarily provided Tanaka with information that appeared to link Stanley to a crime, and there were no circumstances that would lead Tanaka to doubt the bus driver’s information. Unlike information provided by an anonymous tip, information from a true citizen informant could be considered reliable because a citizen informant could be held responsible if the allegations turned out to be fabricated.

In considering whether the information Deputy Tanaka had was sufficient to reasonably justify detaining Stanley, the Court made several observations. Tanaka knew that pictures of the suspect in the “288 case” had been widely disseminated. The bus driver told Tanaka that he had seen a picture of the suspect on a “Be on the Lookout” flier and that the picture on the flier “matched” a passenger on his bus. That flier had just been issued on the very day that the bus driver saw the passenger, so the picture must have been fresh in the bus driver’s mind. Tanaka’s recollection of the surveillance video was not inconsistent with the man identified by the bus driver as the suspect in the “288 case.” And Tanaka had no reason to suspect that the bus driver had any motivation other than good citizenship.

The Court concluded that the information provided by the bus driver to Tanaka was sufficient to reasonably justify a brief stop of Stanley to determine if he was actually the suspect sought in the “288 case.” The serious risks posed by a person who appeared to be the man sought for sexually assaulting a child justified “the minimal intrusion of a brief investigatory” detention to determine if he in fact was the person sought.

The Court reversed the trial court’s order dismissing the case, and remanded with directions to vacate that order and the suppression motion, and to enter a new order denying the suppression motion.

  1. Warrantless Search of a Probationer’s Residence Reasonable Despite Objection of Co-Occupant 

Smith v. City of Santa Clara, 876 F.3d 987 (9th Cir. 2017)

Facts: In October 2010, Santa Clara police investigated a car theft and stabbing. The victim identified Justine Smith (“Justine”) as the driver of his stolen car. Santa Clara police learned that Justine was on probation since December 2009 for grand theft and forgery. As part of the terms of probation, Justine had agreed to warrantless searches of her residence.

Santa Clara police learned of the address that Justine had twice reported as her residence. After conducting a brief surveillance of the duplex at the address without seeing Justine, Santa Clara police officers knocked on the door of the address, and announced, “Probation search. Open the door.” Plaintiff Josephine Smith (“Josephine”), Justine’s mother and co-occupant at the duplex, opened the door. Josephine declared that Justine was not there, and demanded a search warrant. After the officers repeated that they needed to conduct a probation search, Josephine refused entry. The officers entered the home despite Josephine’s objections. The officers did not find Justine at either unit of the duplex.

Josephine filed a suit against the City of Santa Clara and individual police officers alleging state and federal constitutional violations, including a Fourth Amendment claim of unreasonable search and seizure under the Bane Act, Cal. Civ. Code section 52.1(a)-(b).[3] The District Court granted summary judgment to the individual defendants on the Fourth Amendment claim, finding they were entitled to qualified immunity.

At trial, Josephine sought judgment as a matter of law on her Bane Act claims on the grounds that she was present and refused consent to the search, and that therefore the search was unreasonable under Georgia v. Randolph.[4] The District Court denied her motion for judgment as a matter of law and let the case go to the jury. The jury found for the defendants on the Bane Act claim. Josephine appealed the District Court judgment regarding the Bane Act claim, contending that her presence and objection to the search required the officers to obtain a warrant before conducting the probation search of Justine’s residence.

Held: The Ninth Circuit Court of Appeals affirmed the District Court’s judgment. The Court initially observed that “It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980) (internal quotation marks omitted). One exception to this principle is that the police generally may search a home without a warrant if they have obtained voluntary consent from the individual whose home is searched. (Citations omitted). Under this “voluntary consent” rationale, a search will also be valid against an “absent, nonconsenting person” so long as the police obtain the consent of a person who possesses common authority over the home with the absent person. United States v. Matlock, 415 U.S. 164, 170-71 (1974). In Randolph, the Supreme Court recognized a limitation on warrantless consent searches of a home. In that case, the Court held that even if a person who apparently possesses common authority over a home consents to a warrantless search, the search is not reasonable as to a second occupant if that occupant is physically present and refuses permission to search. 547 U.S. at 120.

The Court noted that although the Supreme Court in Randolph recognized a limitation on consent searches, Randolph was not directly applicable to the present case because the Supreme Court’s probation-search cases did not rest on a consent rationale. Instead, the Court of Appeals followed the totality-of-the-circumstances approach used by the Supreme Court in United States v. Knights.[5] The Court of Appeals said that the proper question was whether a warrantless probation search that affects the rights of a third party was reasonable under the totality of the circumstances. Answering this question, the Court explained, required balancing the degree to which a search intruded upon a third party’s privacy rights against the degree to which the search promoted legitimate governmental interests.

The Court of Appeals observed that, in assessing these interests, the Supreme Court in Knights determined that “Knights’ status as a probationer subject to a search condition” informed both sides of the reasonableness balance. Id. at 119. On the individual-privacy side of the balance, the Court found that the probation condition significantly diminished Knights’ reasonable expectation of privacy. Id. at 119-20. On the governmental interest side of the balance, the Court recognized that “the probationer ‘is more likely than the ordinary citizen to violate the law.’” Id. at 120 (quoting Griffin, 483 U.S. at 880).

In applying these standards, the Court of Appeals noted that Santa Clara police officers knew at the time of the search that Justine was on probation for serious offenses. The Court also noted that police had probable cause to believe that Justine had just been involved in a violent crime and car theft, and that she was still at large. The Court stated that once the government has probable cause to believe that a probationer has actually reoffended by participating in a violent felony, the government’s interest in locating the probationer and protect the public was heightened. The Court found that this heightened interest in locating Justine was sufficient to outweigh Josephine’s privacy interest in the duplex that she shared with Justine. Thus, the Court concluded that, under the undisputed facts of this case,[6] the governmental interests at stake were sufficiently great that the warrantless search of Josephine’s duplex over her objection was reasonable as a matter of law.

[1] 210 Cal. App. 4th 1372 (6th Dist. 2012).

[2] 529 U.S. 266 (2000).

[3] The Bane Act provides a cause of action for individuals whose “rights secured by” federal or California law have been interfered with “by threat, intimidation, or coercion.”

[4] 547 U.S. 103 (2006).

[5] 534 U.S. 112 (2001).

[6] The appellate court stressed that their conclusion was limited to the facts of this case, expressing no opinion as to a case in which the police conduct a search – over the objection of a present and objecting co-occupant – of a probationer’s residence who is on probation for offenses that are not violent nor serious, and who is not suspected of involvement in a subsequent offense. The Court also noted that, since Randolph, the California Supreme Court had not considered whether a warrantless probation search of a residence would be unreasonable as to a present and objecting non-probationer co-occupant.