CPOA Case Summaries – May 2021

Courtesy of James R. Touchstone, Esq.


A. Persistent odor of unspecified smoke did not allow for warrantless search of cabinet within shed in backyard under exigent circumstances exception to the Fourth Amendment.

People v. Nunes, 64 Cal. App. 5th 1 (6th Dist. 2021)

Facts: Joseph Nunes moved to suppress evidence from a warrantless search of a backyard shed and a cabinet within it. The prosecution argued the search was valid under the exigent circumstances exception to the Fourth Amendment warrant requirement, and the trial court found the exception applicable. At the hearing on the motion, a firefighter who is a Milpitas Fire Department captain testified that he responded to Nunes’s house based on a report of a “whole structure fire,” with fire coming from the house. When the fire captain arrived, however, he saw no fire and no smoke. Neighbors standing outside told him they had recently seen a plume of smoke coming from the backyard. A police officer was already on scene; the officer “pounded on the door” of the house to check if anyone was inside. After no one answered, the fire captain opened a gate and entered the backyard.

The fire captain testified he “smelled smoke in the air that wasn’t consistent of, like, cooking.” He began investigating to confirm there was no imminent danger. He did not find any active fire. Because there was still an odor of smoke, he and four other firefighters continued to search around the back. The smell was around the entire backyard, not coming from an identifiable place. There were some test tubes and chemistry equipment on the ground, as well as a homemade toy rocket that looked burned. The captain noticed a closed shed. No smoke was coming from it, nor did the smell of smoke seem to originate from there. He opened the shed as part of his fire investigation “to make sure everything [was] clear.”

Inside the shed was a metal cabinet. The captain testified that although there was nothing specific about the cabinet that made him think he should look inside, he still opened the cabinet, and saw bottled chemicals he was not familiar with. Since he did not know what they were, he called the hazardous materials team to respond. Police were also called back to the scene. The police obtained a search warrant, based in part on the chemicals found in the cabinet. After the search warrant was executed, Nunes was charged with numerous offenses for possessing explosives and explosive materials.

Nunes moved to suppress the evidence obtained from the fire captain’s initial warrantless search of the backyard, shed, and cabinet. After the trial court denied his motion, Nunes pled no contest to possessing an explosive and possessing a destructive device, and was granted probation. Nunes appealed, challenging the trial court’s denial of his motion to suppress.

Held: The California Sixth District Court of Appeal stated that the Fourth Amendment prohibits warrantless searches of places where someone has a reasonable expectation of privacy. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 454.) The Court stated that warrantless searches of residences are presumed invalid because privacy expectations are particularly strong in the home. (Payton v. New York (1980) 445 U.S. 573, 586.) One recognized exception to the general rule against warrantless home searches is when an exigent circumstance makes the needs of law enforcement so compelling that a warrantless search becomes objectively reasonable. (Kentucky v. King (2011) 563 U.S. 452, 460.) The exigency asserted here is “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.)

Noting the principle that the justification for searching based on exigent circumstances “ends when the emergency passes,” (People v. Duncan (1986) 42 Cal.3d 91, 99), the Court observed that the emergency which may have existed when fire personnel arrived on scene was no longer apparent when the fire captain opened the cabinet inside the shed. The Court stated that whether exigent circumstances justify a search depends on the circumstances known to the officer at the time of the search. (Id.) By the time the fire captain became aware of the cabinet, there did not appear to be an active fire anywhere on the premises, nor any visible smoke. The Court did not agree that opening 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 dissipated. Viewing the facts here as similar to People v. Baird (1st Dist. 1985) 168 Cal.App.3d 237, the Sixth District maintained that a persistent smell of smoke, without a specific articulation of an emergency threatening life or destruction of property and an explanation of immediate necessity, did not provide a basis to search the cabinet which did not appear to be the source of the smell. The Court of Appeal therefore held that the exigent circumstances exception did not justify the search, and accordingly reversed.

B. Automobile exception authorized officer’s vehicle search because officer who conducted the search had probable cause to believe vehicle contained unlawful amount of marijuana.

People v. Moore, 64 Cal. App. 5th 291 (3rd Dist. 2021)

Facts: Sergeant Andy Hall of the Sacramento Police Department observed a Jeep SUV parked in a Sacramento park in a high-crime area. Sergeant Hall observed Jemondre Dionte Moore leaning into the open front passenger door. When Hall parked his patrol unit behind the Jeep, Moore walked away from the SUV. Sergeant Hall approached the person sitting in the driver’s seat, Brian Bennett. When Hall reached the Jeep, Bennett opened the driver’s side door and a “strong” smell of “fresh marijuana” escaped from the vehicle. Bennett appeared nervous. Hall questioned Bennett, who said there was no marijuana in the car. He then showed the sergeant an empty glass mason jar that appeared to the sergeant to have marijuana residue in it. Bennett claimed there had been marijuana in the car, which he had recently smoked. Bennett denied knowledge of anything illegal in the Jeep. Hall also asked Bennett about a backpack that was on the front passenger floorboard. Bennett responded that his friend had left it in the Jeep. During Hall’s interaction with Bennett, the sergeant observed Moore watching from a distance.

Based on his observations and the odor of fresh marijuana, Hall decided to search the Jeep for an unlawful amount of marijuana and detained Bennett in his patrol car as Hall searched. When Hall picked up the backpack, Moore approached and claimed the backpack as his property. The sergeant informed Moore that he was going to conduct a probable cause search of the backpack. Moore responded that he did not want Hall to search the backpack. Moore walked away and got into a parked Mercedes which drove away, although he was later apprehended. Sergeant Hall opened the backpack and found a jar containing approximately one-quarter pound of marijuana. He also found a loaded .40-caliber handgun, digital scales, “narcotic[] packaging” materials, a cell phone, and a wired charger for an ankle monitor.

The trial court denied Moore’s motion to suppress, finding that the automobile exception to the warrant requirement authorized the search because Sergeant Hall had probable cause to believe the Jeep contained an unlawful amount of marijuana. Pursuant to a negotiated plea agreement, Moore entered a plea of no contest to a count of possession of a firearm by a convicted felon. Moore was sentenced to serve five years in state prison. Moore appealed.

Held: The California Third District Court of Appeal explained that the automobile exception permits warrantless searches of automobiles where an officer has probable cause to believe the vehicle contains contraband or evidence of a crime. (Carroll v. United States (1925) 267 U.S. 132, 155–156.) Moore contended on appeal that the totality of the circumstances failed to supply Sergeant Hall with “probable cause to believe there was an illegal amount of marijuana in the vehicle, as opposed to the presence of a legal amount.”

Based on the totality of the circumstances, the Third District concluded that Sergeant Hall possessed probable cause to search the Jeep for an unlawful quantity of marijuana. The Court noted that the encounter occurred in a “high crime, high drug activity park.” Moore was leaning into the open passenger’s side door of the Jeep and walked away as Hall approached the vehicle. Bennett opened the driver’s door and the strong smell of “fresh marijuana” emanated from the interior of the car which was inconsistent with Bennett’s explanation that the source of the smell was due to his recently having smoked and/or an empty mason jar with what appeared to be marijuana residue. Based on Hall’s extensive experience and training,[1] he reasonably believed that Bennett was lying about the source of the smell. Bennett was nervous, and when asked if there was anything illegal in the Jeep, he responded “[n]ot that I know of,” which the officer said raised additional suspicion. The Court stated that these were all part of the “historical facts” of the interaction which, “viewed from the standpoint of an objectively reasonable police officer, amount[ed] … to probable cause.” (Ornelas v. United States (1996) 517 U.S. 690, 696.) Given that Hall possessed probable cause to search the Jeep for an unlawful quantity of marijuana, the Court stated that it followed that Hall could conduct a probing search of all “compartments and containers within the vehicle whose contents [we]re not in plain view,” including Moore’s backpack. (United States v. Ross (1982) 456 U.S. 798, 800.) Accordingly, the Third District Court of Appeal affirmed.

C. Supreme Court rejects broad application extending community caretaking exception to warrantless searches and seizures in home in certain circumstances.

Caniglia v. Strom, 141 S. Ct. 1596 (2021)

Facts: During an argument at home with his wife, Edward Caniglia put a handgun on the dining room table, and asked his wife to “shoot [him] now and get it over with.” His wife instead left and stayed at a hotel that night. When Caniglia’s wife was unable to reach him by telephone the next morning, she called the police to request a welfare check.

The responding officers accompanied Caniglia’s wife to the home, where they encountered Caniglia on the porch. Caniglia confirmed his wife’s account of the argument to the officers but denied that he was suicidal. Caniglia nonetheless agreed to go to the hospital for a psychiatric evaluation—but only after the officers allegedly promised not to confiscate his firearms. Once the ambulance had taken Caniglia away, however, officers went into his home and seized weapons. Guided by Caniglia’s wife—whom they allegedly misinformed about her husband’s wishes—the officers entered the home and took two handguns.

Caniglia sued, claiming that the officers violated the Fourth Amendment when they entered his home and seized him and his firearms without a warrant. The District Court granted summary judgment to the officers.

The First Circuit Court of Appeal affirmed solely on the ground that the decision to remove Caniglia and his firearms from the premises fell within a “community caretaking exception” to the warrant requirement. Citing the United States Supreme Court’s statement in Cady v. Dombrowski that police officers often have noncriminal reasons to interact with motorists on “public highways,” 413 U. S. 433, 441 (1973), the First Circuit extrapolated a freestanding community-caretaking exception that applies to both cars and homes. Accordingly, the First Circuit saw no need to consider whether anyone had consented to respondents’ actions; whether these actions were justified by “exigent circumstances”; or whether any state law permitted this kind of mental-health intervention. The Supreme Court granted certiorari.

Held: The Supreme Court noted that the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Supreme Court stated that the “‘very core’” of this guarantee under the Fourth Amendment is “‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Florida v. Jardines, 569 U. S. 1, 6 (2013). Yet the Supreme Court has also held that law enforcement officers may enter private property without a warrant when certain exigent circumstances exist, including the need to “‘render emergency assistance to an injured occupant or to protect an occupant from imminent injury.’” Kentucky v. King, 563 U. S. 452, 460, 470 (2011); see also Brigham City v. Stuart, 547 U. S. 398, 403-404 (2006) (listing other examples of exigent circumstances).

However, the Supreme Court explained that the First Circuit’s “community caretaking” rule went beyond any that the Court previously had established. The Supreme Court explained that neither the holding nor logic of Cady justified the First Circuit’s broad approach. While Cady also involved a warrantless search for a firearm, the location of that search was an impounded vehicle—not a home—”‘a constitutional difference’” that the opinion repeatedly stressed.[2] Underscoring the point, Cady expressly contrasted its treatment of a vehicle already under police control with a search of a car “parked adjacent to the dwelling place of the owner.”[3] Moreover, the Supreme Court stated that Cady’s recognition that police officers perform many civic tasks in modern society was only that—a mere recognition that these tasks exist, not an open-ended license to perform them anywhere.

Declaring “[w]hat is reasonable for vehicles is different from what is reasonable for homes,” the Court noted that it had repeatedly “declined to expand the scope of . . . exceptions to the warrant requirement to permit warrantless entry into the home.”[4] The Court accordingly vacated the Circuit Court’s judgment and remanded the case for further proceedings.

For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 9, available at www.jones-mayer.com.

D. Officer exceeded permissible scope of Terry frisk by directly searching inside defendant’s pocket instead of conducting limited exploration for arms.

United States v. Brown, 996 F.3d 998 (9th Cir. 2021)

Facts: In November 2017, El Cajon Police Department Officers Robert Wining and Robert Nasland responded to a radio call stating that motel staff had reported two “transients” in the motel parking lot, one of whom was a white male who had a bike and who had been seen urinating in the bushes and the other of whom was a female. After the officers arrived at the parking lot, they came upon Jon Bartlett, a white male with a bike, and James Antonio Brown, an African-American male who did not fit either description of the reported transients. While speaking with the men, Wining noticed that Brown “put his hands down to his sides” and that he then “reach[ed] his index finger into his right pocket.” Wining ordered Brown to stand up and turn around. Although Brown denied that he reached into his pocket, he complied with Wining’s instructions and allowed Wining to secure his arms behind his back in a finger hold. When Wining asked what was in Brown’s pocket, Brown stated that he was “not quite sure.” Wining then stated “I’m going to check, OK?” Brown grunted a monosyllabic response. Wining then reached into Brown’s pocket and discovered pulled out a plastic bag containing heroin. Wining searched Brown more thoroughly and found other items related to drug use and several thousand dollars cash.

Brown was charged with felony possession of 35.35 grams of heroin with intent to distribute. He moved to suppress the heroin, cash, and other items found during the search, alleging violation of the Fourth Amendment. The District Court denied Brown’s motion. The jury returned a guilty verdict and Brown was sentenced to 41 months in prison and three years of supervised release. Brown appealed.

Held: The Ninth Circuit Court of Appeals observed that in Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that if an officer has reasonable articulable suspicion that a person is engaged in a crime, the officer may briefly detain that person to make a limited and appropriate inquiry and if the officer has reason to believe that the person detained may be armed with any sort of weapon, the officer may further conduct a limited protective frisk for such weapons.

The Court held that the officers’ encounter with Brown was consensual until the point at which an officer ordered Brown to stand up and turn around. At that point, Wining had seized Brown, but the seizure was justified because the officer had developed reasonable suspicion that Brown was engaged in a drug transaction. The Court determined that this was a Terry seizure.

The Ninth Circuit next considered whether the search of the pocket exceeded what Terry and associated cases allowed. The Court stated that in describing the scope of the permissible protective frisk that is authorized during a brief investigative detention, Terry emphasized that the “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, 392 U.S. at 29. “If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” Minnesota v. Dickerson, 508 U.S. 366, 373 (1993).

The Court concluded that, under Sibron v. New York, 392 U.S. 40 (1968),[5] Wining’s search of Brown’s pocket exceeded the limited scope of what Terry permitted. The Court explained that here, as in Sibron, the police officer did not bother to conduct “an initial limited exploration for arms,” Id., at p. 65, or any other less intrusive examination, but instead proceeded immediately to search the detainee’s pocket. And here, as in Sibron, there were no special factors that might have suggested the need for such immediate and more intrusive measures. In both cases, the detainee was compliant, the officers were not outnumbered, and the encounter occurred in a public place. The Court thus concluded that under Sibron, the officer’s search of Brown’s pocket exceeded the limited scope of what Terry permits and was therefore unreasonable under the Fourth Amendment. Accordingly, the Ninth Circuit Court of Appeals reversed and remanded.

E. Defendant’s motion to suppress evidence from warrantless vehicle search was properly denied because vehicle was in close proximity to shooting, parked in haphazard way, and residents did not recognize it.

People v. Tousant, 2021 Cal. App. LEXIS 442 (1st Dist. May 26, 2021)

Facts: In April 2015, the son of Jamell Tousant was shot and killed in possible gang violence. Wary of potential retaliation, undercover police surveilled the hospital where Tousant Jr. ultimately died. An undercover officer observed an upset and agitated Tousant holding a long-barreled shotgun and ammunition belt. Tousant believed that his son was killed as part of a feud with the Five Finga Mafia, a gang in Berkeley. He identified people associated with the gang, and came to believe that Nigel Blackwell had killed his son.

On August 15, 2015, a white four-door vehicle pulled up in front of a house in Berkeley where four men, including one of the gang members Tousant had identified, were standing outside. The vehicle license plate number was later determined to match that of Tousant’s car. From the car window, the vehicle’s passenger used a long-barreled gun to fire 10 to 15 shots towards the house where the four men were. Records showed that Tousant’s cellphone was in the area shortly before the shooting.

Five days later in Oakland, Bruce McMahan backed his car out of his driveway when a man emerged and shot several times at McMahan, hitting his vehicle. McMahan saw another man directly across the street. Both men that McMahan spotted got into a white four-door vehicle and drove away. Police found a red Chevrolet Camaro car parked across the street from McMahan’s house, blocking a resident’s driveway, and only a few feet from recovered shell casings. The doors to the car were unlocked and the keys were in the ignition. Police engaged in a warrantless search of the car a few hours after the shooting and recovered, among other things, a rental car agreement bearing Tousant’s name and his cellphone. The resident who lived across the street from McMahan informed Oakland police that the car was not there when he left for work at approximately 2:00 a.m. but at approximately 5:00 a.m., he found the car partially blocking his driveway when he returned from work. The resident did not recognize the car, and no one came to retrieve it after the shooting. Tousant later acknowledged that he had parked the Camaro across the street and was at the scene of the Oakland shooting where he believed Nigel Blackwell lived (although he stated that he fled on foot when he heard gunshots). Tousant was arrested on August 31 after a license plate check during a traffic stop matched that of the car in the Berkeley shooting, and a search of the car revealed a shell casing of the same caliber as on of the guns used in the Berkeley shooting.

On September 2, Officer Lorena Arreola, who had been investigating Tousant and his potential involvement in the Oakland shooting, turned on the seized cellphone to identify its phone number. She retrieved the number by looking through the settings folder on the phone. She also found a photograph of Tousant’s driver’s license on the phone. A computer program used for identifying phone subscribers by their telephone numbers indicated the cellphone belonged to Tousant. Arreola then used this cellphone number and other details of her investigation of Tousant to write an affidavit in support of a search warrant of the cellphone. A warrant issued on September 4, and Arreola downloaded the cellphone’s contents, including Tousant’s photos, internet search history and the text messages between Tousant and other contacts. One of Tousant’s contacts had sent him a message with the address of the Oakland shooting. The contact, at Tousant’s request, had confirmed the address belonged to “Nigel.” After reviewing the internet search history on Tousant’s cellphone, the police determined Tousant had looked up the address five hours before the Oakland shooting occurred.

At a preliminary hearing, Tousant moved to quash the warrant and suppress this evidence, but the magistrate summarily denied the suppression motion. Tousant’s trial counsel renewed the motion to suppress, but the trial court also denied the motion. The jury convicted Tousant of all counts related to the Berkeley shooting and to his possession of firearms by a felon count, and the trial court imposed a sentence of 22 years in state prison. Tousant’s subsequent appeal challenged, among other things, the denial of his motion to suppress evidence downloaded from his cellphone, seized after the allegedly illegal search of his rental car left at the scene of the Oakland shooting.

Held: The California First District Court of Appeal noted the automobile exception to the warrant requirement authorizes law enforcement to conduct a warrantless search of any area of a vehicle if there is probable cause to believe it contains evidence of criminal activity or contraband.[6] “Probable cause to search exists when, based upon the totality of the circumstances . . . ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’“[7] Here, the Camaro’s doors were unlocked, and the keys were in the ignition, suggesting that the driver left the car quickly. Shell casings and a loaded firearm magazine were located on the street a few feet from the car. The First District found that these circumstances—the Camaro’s proximity to the target of the shooting, bullet casings, and loaded magazine, its arrival on the scene shortly before the shooting, its unfamiliarity to nearby residents, and the indications it was a rental car, which the driver hastily parked and fled—in their totality established “a fair probability” that the vehicle and its occupants were connected to the shooting and that the car would contain evidence of that crime. The Court therefore concluded that there was probable cause to search the Camaro.

For similar reasons, the police properly seized Tousant’s cellphone —found in plain view, in the clearly visible portion of the center console near the left-hand side of the center console cup holder, close to the right edge of the driver’s seat. The Court explained that officers may seize evidence in plain view “from a position where the officer has a right to be,” including a vehicle he or she is entitled to search.[8] This includes cell phone evidence in plain view because “it is reasonable to expect that incriminating information will be found on a phone regardless of when the crime occurred.”[9] Here, police reasonably believed the Camaro and its driver were connected to the shooting. Based on the totality of the circumstances, the Court concluded that there was probable cause to believe the cellphone would contain evidence related to the shooting, and therefore it was properly seized.

Although the First District found that Officer Arreola’s initial pre-warrant search of Tousant’s cellphone on September 2, 2015, was illegal, the Court determined that even without the tainted information derived from the illegal search[10] – the cellphone number and driver’s license information confirming Tousant’s connection with the cellphone – the officer’s affidavit established probable cause to search the cellphone. The Court explained that most of the affidavit detailed Arreola’s investigation of Tousant before the September 2 warrantless search of his phone. Moreover, the facts amply supported the trial court’s finding that the police would have sought and obtained the warrant even without obtaining Tousant’s telephone number or driver’s license information. Accordingly, the Court affirmed.

F. County immune from liability for any negligence by sheriff’s deputies in failing to promptly cover or remove the body of plaintiff’s murdered husband because undisputed evidence demonstrated that deputies’ negligence, if any, occurred during the course of the deputies’ official murder investigation.

Leon v. Cnty. of Riverside, 2021 Cal. App. LEXIS 446 (4th Dist. May 27, 2021)

Facts: In March 2017, Dora Leon’s husband, José Leon, was shot and killed by a neighbor in a driveway of a mobile home park where Dora and José lived. Riverside County Sheriff’s deputies unsuccessfully attempted to revive José but, before doing so, one of the deputies dragged José’s body approximately three feet. In the process of being dragged, José’s pants fell to his thighs, exposing his genitals. José’s body lay, with his genitals exposed, for around eight hours while sheriff’s deputies and other law enforcement officers evacuated the mobile home park, located the shooter who had shot himself dead, and continued investigating the shooting. José’s body was not removed until shortly after the coroner arrived on the scene and completed processing the body.

Dora sued the County of Riverside (“County”), alleging a single cause of action for negligence, sounding in negligent infliction of emotional distress, based on the failure of the deputies to promptly cover José’s exposed body, or remove the body from the scene, while deputies evacuated the mobile home park, searched for the shooter, and investigated the shooting. The trial court granted the county’s motion for summary judgment on Dora’s first amended complaint (“FAC”). Dora appealed from the judgment in the County’s favor, arguing that the deputies who responded to the shooting, and the County as the deputies’ employer, owed Dora a duty of care not to allow José’s body to lie exposed while deputies and other law enforcement officers secured the area and investigated the shooting.

Held: The California Fourth District Court of Appeal noted that under the Government Claims Act (Government Code sections 810 et seq.) (the “Act”), public entities are immune from liability except as provided by statute (Section 815(a)), and public entitles are immune where their employees are immune, except as otherwise provided by statute. (Section 815.2(b). (Caldwell v. Montoya (1995) 10 Cal.4th 972, 980.) Under Section 815(a),[11] “‘[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.’” (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 932.)

The Court of Appeal observed that the it had consistently construed Section 821.6 as immunizing a public employee from liability for any injury-causing act or omission in the course of the institution and prosecution of any judicial or administrative proceeding, including an investigation that may precede the institution of any such proceeding. In Amylou R. v. County of Riverside,[12] the Fourth District had held that some officers’ alleged tortious acts all occurred within the course of their investigation of a sexual assault of the minor plaintiff and the murder of a woman. and “[b]ecause investigation is ‘an essential step’ toward the institution of formal proceedings, it ‘is also cloaked with immunity.’”[13] Thus, the officers were immune under Section 821.6, and, the county, as the officers’ employer, was immune from liability for the officers’ alleged torts under Section 815.2.

Here, the Fourth District also concluded that the County was immune from liability to Dora for the deputies’ negligence, if any, in failing to promptly cover José’s exposed body or remove it from the crime scene. The Court explained that all of the evidence cited on the County’s motion for summary judgment showed that the deputies’ negligence, if any, in failing to promptly cover or remove José’s body from the scene, occurred during the course of the deputies’ performance of their official duties to secure the area following the shooting and the deputies’ and other law enforcement officers’ investigation of the shooting. Thus, the Court concluded that the deputies and the County were immune from liability to Dora for the deputies’ negligence, if any, in leaving José’s body exposed while the deputies and other law enforcement officers investigated the shooting. Moreover, Government Code section 27491.2 also prohibited the deputies from “disturbing or moving” José’s body until the coroner or the coroner’s appointed deputy gave the deputies permission to do so. Thus, after Accordingly, the Court of Appeal affirmed.

G. Officers’ conduct did not fall within the scope of the emergency exception to the warrant requirement because they had no reason to believe that the victim of reported child abuse in a vehicle was in the home at the address where the vehicle was registered.

United States v. Holiday, 2021 U.S. App. LEXIS 15884 (9th Cir. May 27, 2021)

Facts: In early 2017, Juan Marquis Holiday robbed or attempted to rob ten businesses, each of which was captured in surveillance footage. During Holiday’s trial, the Government provided body camera footage as evidence from an unrelated police encounter at Holiday’s home. In the footage, Holiday was wearing blue Nike Cortez shoes with white trim, which matched the description of the shoes the suspect was wearing during one of the robberies.

The body camera footage was taken on February 7, 2017, after police received a report that a man was hitting a child in the backseat of a blue Jaguar. Police ran the Jaguar’s license plate and found it was registered to a person with the initials M.B., at a certain address. When San Diego Police Department officers arrived at that address, one of them knocked on the front door, tried the handle, and found it was unlocked. The officer pushed the door open but remained standing on the threshold. Holiday and his wife were on their way to the door when the officer opened it; they told the officers that their children were at school and that they did not own a blue Jaguar. There was no evidence that the officers saw a blue Jaguar at or near Holiday’s residence. The officers took Holiday’s name and left.

At his robbery trial, Holiday moved to suppress the bodycam footage of this encounter on the ground that it was collected in violation of the Fourth Amendment. The District Court denied the suppression motion based on exigent circumstances. The jury convicted Holiday for his role in all ten robberies. Holiday appealed, contending among other things that the District Court incorrectly denied his motion to suppress the body camera footage.

Held: The Ninth Circuit Court of Appeals observed that the San Diego Police Department had not obtained a warrant to search Holiday’s home in connection with the report of child abuse in a blue Jaguar registered to Holiday’s address. The Court noted that “searches and seizures inside a home without a warrant are presumptively unreasonable,” and therefore violate the Fourth Amendment, unless subject to an established exception. Kentucky v. King, 563 U.S. 452, 459 (2011) (internal quotation marks omitted). The Government conceded that opening Holiday’s front door constituted a search, but also argued that the search was constitutional pursuant to the emergency exception to the warrant requirement.

The Court explained that pursuant to the emergency exception, police need not obtain a search warrant to enter a dwelling if “(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search’s scope and manner were reasonable to meet the need.” United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). Domestic violence cases do not “create a per se exigent need for warrantless entry.” United States v. Brooks, 367 F.3d 1128, 1136 (9th Cir. 2004).

The Court of Appeals found that the Government failed at the second prong of the Snipe emergency exception test because the officers had no reason to believe that the child victim was in the home at the address where the Jaguar was registered. Moreover, they had reason to believe the child was not in the home, since the tip they received was that the child was in a blue Jaguar. The Court therefore held that the District Court erred by denying the Holiday’s motion to suppress the body camera footage. However, the Ninth Circuit concluded that the error in admitting the body camera evidence was harmless because of the strength of the other evidence against Holiday in a particular robbery. Finding against Holiday’s other claims as well, the Court accordingly affirmed.


There was no precedent establishing that prison official’s monitoring of inmate’s legal calls with attorney representing him in civil matter violated inmate’s Fourth Amendment rights; thus, qualified immunity was proper.

Witherow v. Baker, 997 F.3d 1060 (9th Cir. 2021)

Facts: Between May 2007 and January 2008, Lea Baker was a correctional officer at now-closed Nevada State Prison, a Nevada Department of Corrections (“NDOC”) facility. As part of her assignment, Baker was responsible for monitoring telephone calls. Following NDOC procedures, she would listen to the beginning of a legal call to confirm its legal character at which point she would switch off the speaker. If some time had passed, she would switch back on intermittently to see if the inmate was still engaged in a legal call, as inmates were generally permitted twenty minutes per call and other inmates might be waiting for the phone. John Witherow was then an inmate at the prison. As required by NDOC policy, Baker screened and intermittently checked in on Witherow’s phone conversations with the attorney he had hired to bring civil lawsuits on his behalf.

Witherow sued under 42 U.S.C. section 1983, alleging defendants had violated his Fourth Amendment rights and engaged in unlawful wiretapping in monitoring Witherow’s calls to the attorney. The jury returned a verdict for the defendants on Witherow’s wiretapping claim. In 2014, the District Court dismissed Witherow’s claims against Baker and another NDOC officer for damages and injunctive and declaratory relief. On appeal, the Ninth Circuit Court of Appeals reversed the District Court’s dismissal. On remand, the District Court again dismissed Witherow’s Fourth Amendment claim against Baker and the other officer. On Witherow’s second appeal, the Ninth Circuit reversed the dismissal due to a procedural error and again remanded. On remand, the District Court granted Baker’s motion for summary judgment, holding that Baker was entitled to qualified immunity because (1) Baker had not violated Witherow’s Fourth Amendment rights, and (2) if she had violated any such right, that right was not clearly established. Witherow appealed.

Held: The Ninth Circuit stated that a government official is entitled to qualified immunity from a claim for damages unless the plaintiff raises a genuine issue of fact showing (1) “a violation of a constitutional right,” and (2) that the right was “clearly established at the time of [the] defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Court exercised its discretion to consider only the second prong of the qualified immunity analysis: whether Baker’s conduct in initially screening and occasionally checking in on Witherow’s legal calls with an attorney not representing him in a criminal matter violated a Fourth Amendment right that was clearly established at the time. The Court held that this conduct did not violate a clearly established right, explaining that Witherow had not cited any precedent that had placed the constitutional question “beyond debate.”[14] There was no Supreme Court case considering whether a prison official’s monitoring of an inmate’s legal calls in this manner violated an inmate’s Fourth Amendment rights. Nor had Witherow cited any Ninth Circuit precedent holding that monitoring the beginning of an inmate’s calls to ensure their legal character and then intermittently checking on those calls to confirm their continuing legal character violated a prisoner’s Fourth Amendment rights. Although Witherow cited cases that addressed attorney-client privilege generally, the Court stated that generalized discussions did not clearly establish any constitutional right that was violated here. The Court added, “As we have made clear, [s]tanding alone, the attorney-client privilege is merely a rule of evidence; it has not yet been held a constitutional right.”[15] The Ninth Circuit Court of Appeals therefore concluded that Baker was entitled to qualified immunity, and accordingly affirmed.


Superior court erred in interpreting Emergency Services Act to prohibit Governor from issuing quasi-legislative orders in an emergency.

Newsom v. Superior Court, 63 Cal. App. 5th 1099 (3rd Dist. 2021)

Facts: In response to the COVID-19 emergency, California Governor Gavin Newsom issued an order in May 2020 which required all voters to be provided vote-by-mail ballots. In June 2020, he signed Executive Order No. N-67-20 (“Executive Order”), which affirmed that all counties would mail eligible voters vote-by-mail ballots and provide for the use the Secretary of State’s vote-by-mail ballot tracking system. Real parties filed a complaint for declaratory and injunctive relief seeking a declaratory judgment that the Executive Order was null and void as an unconstitutional exercise of legislative powers reserved only to the Legislature, nor as a permitted action under the Emergency Services Act[16] and an injunction against the Executive Order’s implementation. The superior court granted real parties’ ex parte for a temporary restraining order suspending the Executive Order. However, in Newsom v. Superior Court,[17] the California Third District Court of Appeal granted the Governor’s petition challenging the temporary restraining order, holding that there was no basis for the superior court to grant real parties’ ex parte application.

After this decision, the reassigned judge entered a judgment granting declaratory relief that the Executive Order was void as unconstitutional and that the Emergency Services Act did not authorize the Governor to issue an executive order that amends or makes statutory law. The superior court issued a permanent injunction prohibiting the Governor from exercising any powers under the Emergency Services Act “which amend, alter, or change existing statutory law or make new statutory law or legislative policy.” The Governor filed a petition for writ of mandate.

Held: The Third District Court of Appeal stated that the declaratory relief and accompanying permanent injunction regarding executive orders issued under the Emergency Services Act (hereafter, the “Act”) raised matters of great public concern regarding the Governor’s orders in the ongoing COVID-19 pandemic emergency.

The Act’s Section 8627 provides in part: “During a state of emergency the Governor shall…have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of this chapter.” While the superior court attempted to interpret the Act’s Section 8627 to exclude any grant of authority to the Governor to issue quasi-legislative orders, the Court of Appeal explained that “police power” as exercised is generally the power to legislate.

The Court next considered whether Section 8627 violated the constitutional separation of powers by delegating such authority to the Governor, observing that “[a]n unconstitutional delegation of legislative power occurs when the Legislature confers upon an administrative agency unrestricted authority to make fundamental policy decisions….[However, the] doctrine prohibiting delegations of legislative power does not invalidate reasonable grants of power to an administrative agency, when suitable safeguards are established to guide the power’s use and to protect against misuse.”[18] The Third District noted that the Legislature does not unconstitutionally delegate legislative power when the statute provides standards to direct implementation of legislative policy. (Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118, 1148.) The Court stated that the purpose of the Emergency Services Act does provide standards to guide implementation of Section 8627. The Court explained that in issuing orders under Section 8627, the Governor is charged by the Emergency Services Act with the responsibility to provide a coordinated response to the emergency. The Court found that this statutory purpose provides the Governor sufficient guidance, i.e., to issue orders that further a coordinated emergency response. Moreover, the Court determined that the Governor’s obligation under the Act to terminate the emergency and thereby nullify orders issued under his emergency powers as soon as conditions warrant, as well the Legislature’s authority to terminate the emergency at any time with the same effect,[19] provided a safeguard for the delegation of quasi-legislative authority in Section 8627. The Third District thus found that Section 8627 is not an unconstitutional delegation of legislative power, and concluded that the issuance of quasi-legislative orders in an emergency did not constitute an unconstitutional delegation of legislative power. Accordingly, the Third District granted the Governor’s petition, and directed the superior court to vacate the relevant portion of its judgment and enter a new and different judgment in favor of the Governor.

[1] “An officer is entitled to rely on his [or her] training and experience in drawing inferences from the facts he [or she] observes…” (United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000).)

[2] Cady, 413 U. S., at 439; see also id., at 440-442.

[3] Id., at 446-448 (citing Coolidge v. New Hampshire, 403 U. S. 443 (1971)).

[4] Collins v. Virginia, 138 S. Ct. 1663, 1672 (2018).

[5] The Court noted that Sibron was a companion case to Terry that was decided the same day.

[6] People v. Lopez, 8 Cal.5th 353, 372 (2019); U.S. v Ross, 456 U.S. 798, 799-800 (1982).

[7] People v. Farley, 46 Cal.4th 1053, 1098 (2009); Illinois v. Gates, 462 U.S. 213, 230-239 (1983).

[8] People v. Webster, 54 Cal.3d 411, 431 (1991).

[9] Riley v. California, 573 U.S. 373, 388, 399 (2014).

[10] The Court explained: “Where, as here, ‘a criminal investigation involved some illegal conduct, courts will admit evidence derived from an “independent source’”—evidence “‘that has been discovered by means wholly independent of any constitutional violation.’” [(People v. Weiss (1999) 20 Cal.4th 1073, 1077.)]  For search warrant affidavits containing ‘both information obtained by unlawful conduct as well as untainted information,  a two prong-test applies to justify application of the independent source doctrine.’ (People v. Robinson (2012) 208 Cal.App.4th 232, 241.) ‘First, the affidavit, excised of any illegally-obtained information, must be sufficient to establish probable cause.’ (Ibid.) Second, the evidence must support a finding that “the police subjectively would have sought the warrant even without the illegal conduct.”’ (Ibid.)”

[11] The Fourth District described Section 815(a) as the “cornerstone” of the Act.

[12] 28 Cal.App.4th 1205 (4th Dist. 1994).

[13] Id., at p. 1210.

[14] Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see also Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).

[15] Partington v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992), as amended (July 2, 1992).

[16] Government Code section 8550 et seq.

[17] 51 Cal.App.5th 1093 (3rd Dist. 2020).

[18] People v. Wright, 30 Cal.3d 705, 712-713 (1982).

[19] See Section 8629 and subdivision (b) of Section 8567 of the Emergency Services Act.