The Criminal Docket


April 2006      

Volume 1, Number 3


 ISSUE: When police lawfully find a small quantity of drugs during a limited vehicle search, do they have PC to search the entire vehicle and its contents?          
Police might discover drugs during a lawful search of a driver or passenger, or see a small quantity of drugs in plain view during a stop, or during a limited consent search, or while searching for license, registration and insurance documents. In re Arturo D. and People v. Hinger (2002) 27 Cal.4th 60, 79-83. Does the discovery of even a minute amount of drugs constitute probable cause to suspect the presence of more, and thus justify a warrantless search of the vehicle within the scope of US v. Ross (1982) 456 US 798, 825 ("every part of the vehicle and its contents that may conceal the object of the search")?  Short answer: yes.
 Pre-Ross, pre-Prop 8 cases held that the discovery of drugs in the passenger compartment might establish PC to search the remainder of the passenger compartment, but not the trunk. People v. Gregg (1974) 43 Cal.App.3d 137, 142; Wimberly v. Superior Court (1976) 16 Cal.3d 557, 572-73. These cases no longer control.
 The rule now is that the lawful discovery of small amounts of drugs during a vehicle stop provides PC to search the entire vehicle, including the trunk and engine compartment, and all smaller compartments and containers within that could hold more drugs. Examples:
 • People v. Varela (1985) 172 Cal.App.3d 757, 762 ("[A]fter bindles of heroin and cocaine were found on [defendant's] person, there existed probable cause to believe that more narcotics would be found in the trunk of the vehicle.")
 • People v. Hunt (1990) 225 Cal.App.3d 498, 509 ("Once the officer discovered rock cocaine in the passenger compartment, he had probable cause to believe illegal drugs would be found in the trunk of the car. The officer could lawfully search the trunk without a warrant....")
 • People v. Perez (1996) 51 Cal.App.4th 1168, 1179 ("[T]he discovery of drugs in the ammo pouch provided probable cause for a further search for drugs" throughout the truck.)
 • People v. Dey (2000) 84 Cal.App.4th 1318, 1322 (Finding one marijuana bud in defendant's day planner in the passenger compartment was PC to search the trunk, where more marijuana was found, and the engine compartment, where a scale and methamphetamine were located.)
 • People v. Hunter (2005) 133 Cal.App.4th 371, 380-81 (Plain view of baggie on the backseat with less than one ounce of marijuana justified search of a backpack in the trunk that contained 14 more bags of drugs, a loaded handgun and magazines, masks, and other evidence. At 826-27, the appellate court sternly admonished lower courts that they must follow the holding of Dey.)

BOTTOM LINE: Lawful discovery of a small amount of contraband in a vehicle will generally constitute PC to search the entire vehicle and its contents that might contain more contraband.

NUMBER: 2006-03     DATE: 02-24-06     BY: Devallis Rutledge     TOPIC: Small Quantity as PC for Search


This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to insure currency after publication.  Local policies and procedures regarding application should be observed.
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ISSUE: Can the courtroom bailiff become a trial witness after seeing or hearing something that has probative value?
Over 100 years ago, back when the solitary town marshal typically arrested the crook and then testified against him while simultaneously serving as the courtroom bailiff, the Supreme Court was already uneasy about allowing one and the same officer to be both a key witness and the guardian of the jury, where personal contacts might influence credibility assessments. Mattox v. US (1892) 146 US 140, 151 (reversing a murder conviction because of the bailiff's prejudicial comments).
In Turner v. Louisiana (1965) 379 US 466, the court reversed a murder conviction because two investigating and arresting officers who gave crucial testimony at trial were among the group of deputies assigned to accompany the sequestered jury. The court found "extreme prejudice inherent in this continual association throughout the trial between the jurors and these key witnesses for the prosecution." Id., at 473.
Summarily reversing yet another murder conviction in Parker v. Gladden (1966) 385 US 363, the court noted that "the official character of the bailiff—as an officer of the court as well as the State—beyond question carries great weight with a jury which he has been shepherding for eight days and nights." Id., at 365.
Later, the court acknowledged that "association with the jury by a witness whose testimony was confined to some uncontroverted or merely formal aspect of the case for the prosecution would hardly present a constitutional problem," in contrast with "the great prejudice inherent in the dual role of jury bailiff and key prosecution witness." Gonzales v. Beto (1972) 405 US 1052.
In People v. Cummings (1993) 4 Cal.4th 1233, the bailiff overheard incriminating statements while escorting the defendant from court to lockup. After testifying to these statements, the bailiff was relieved of his courtroom duties, and the jury was admonished not to accord his testimony any greater weight because he was a bailiff. The California Supreme Court approved of this procedure and said that "Cummings cannot claim an immunity for his extrajudicial statements on the ground that it happened to be a bailiff who overheard the statements." Id., at 1290-91.
Espinoza v. Superior Court (1994) 28 Cal.App.4th 957, rejected the argument that prejudice results from the fact that both the bailiffs and the key law enforcement witnesses in a case are deputies of the same sheriff's department.
In People v. Hill (1998) 17 Cal.4th 800, 842-43, during lockup escort, defendant disputed the trial witnesses' accounts of stabbings, telling the bailiff, "I always stab them with my left hand. That's where I have my power." The court said that once admissibility was established by a 352 hearing, the bailiff should have been reassigned after testifying and the jury should have been instructed sua sponte not to give the bailiff's testimony artificial weight.
And in People v. Guerra (2006) ___ Cal.4th ___ , WL 488528, DJDAR 2547, the court declined to apply a presumption of prejudice where a bailiff testified to statements the defendant made during pretrial contact, and where the bailiff was then reassigned before trial began and had no contact with the jurors.

BOTTOM LINE: Admissibility of the potential testimony of the courtroom bailiff can be determined by 352 hearing; if the bailiff becomes a witness, s/he should temporarily be transferred from that courtroom, and the jury should be admonished not to treat the bailiff's testimony any differently merely because s/he is a bailiff.
NUMBER: 2006-04 DATE: 03-07-06 BY: Devallis Rutledge TOPIC: Bailiffs as Witnesses             

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ISSUE: Should law enforcement officers give Miranda warnings before non-custodial interrogations?
In situations where officers cannot tell whether the interrogation of a suspect is custodial or non-custodial, a precautionary Miranda warning and waiver may be good insurance for the admissibility of statements. (Example: A detention may have turned into a de facto arrest by the passage of time or transportation of the suspect. Kaupp v. Texas (2003) 538 US 626, 630-32.) But where it's clear that questioning is non-custodial, Miranda warnings are not required—even though a suspect is being questioned in the police station:
 "[P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect."
   Oregon v. Mathiason (1977) 429 US 492, 495
 Several times, the Supreme Court has reaffirmed that even suspected murderers can be questioned in the police station without warnings, as long as they are at the station voluntarily, appear to be free to leave at will, and are not subjected to any restraints. California v. Beheler (1983) 463 US 1121, 1125; Stansbury v. California (1994) 511 US 318, 326; and Yarborough v. Alvarado (2004) 541 US 652, 664. The California Supreme Court has similarly ruled, as it must. Green v. Superior Court (1985) 40 Cal.3d 126, 137.

 Most officers are familiar with the practice of inviting suspects to the station for a voluntary interview and giving them a "Beheler admonition" ("You're not under arrest. You're free to leave anytime you want."). However, cases continue to arise where an officer with good intentions creates admissibility issues and potential civil liability problems by giving an unnecessary Miranda admonition in such cases.
 In People v. Guerra (2006) ___ C4th ___ , DJDAR 2547, WL 488528, a homicide detective needlessly Mirandized a murder suspect at a voluntary stationhouse interview instead of giving a Beheler admonition, and the process backfired. The suspect said, "I want an attorney." The detective then created a Miranda issue by continuing to question, and created a voluntariness issue by threatening arrest: "If you want an attorney and don't want to talk to us, you're going to be arrested for murder and booked into jail right now."
 The detective also created a potential Fourth Amendment problem, because he conceded he had no PC to arrest, and the reading of a Miranda warning—which is only required when the suspect is in custody—is an indication of de facto arrest: "The police read defendant his Miranda rights at the station, a strong indication that they themselves considered the interrogation 'custodial'." People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824.
 Needless Miranda advice in such a situation could cause the resulting statement to be excluded as the fruit of illegal arrest, Wong Sun v. US (1963) 371 US 471, 485-86, and could generate civil liability for the officer and his/her agency for unlawful arrest. Caballero v. City of Concord (9th Cir. 1992) 956 F.2d 204, 206.

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ISSUE: Can police enter and search a residence based on the consent of one occupant, when another occupant is present and objects?

In People v. Haskett (1982) 30 Cal.3d 841, 857, the California Supreme Court ruled that a wife’s consent to enter and search the family residence was valid, even though the husband (who was also present) objected. The Ninth Circuit came to the same conclusion in US v. Morning (9th Cir. 1995) 64 F.3d 531, 536.
 The Supreme Court has abrogated these and other similar decisions, ruling that the consent of one joint occupant can be nullified by another who is present and objects: “[A] warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Georgia v. Randolph (2006) 547 US ___ , DJDAR 3375, WL 707380.
 Mrs. Randolph called police to the house during a child-custody dispute. She told officers her husband used drugs, evidence of which was in the house. Mr. Randolph was present and denied the allegation. Police asked him (?!) for consent to search the house. He refused. They then asked his wife, and she gave consent and led them to the evidence. Suppression of this evidence and its fruits from Mr. Randolph’s trial was affirmed by the Supreme Court.
 The court did not overrule its decision in US v. Matlock (1974) 415 US 164, holding that doorway consent given by one adult occupant of a residence was valid, where the non-consenting defendant was confined in a police car nearby. Instead, the court created a “complementary rule:” if the objector is not at the doorway (and absent evidence that police removed him/her to avoid a possible objection), Matlock applies, and consent of one occupant is valid; if the objector is present and objects, Randolph applies, and the consent of a co-occupant cannot justify a search for evidence to be used against the objector.
 In dicta, the court made the following suggestions:
 • A parent could give valid consent despite a child’s objection.
 • Police could use one occupant’s information to obtain a warrant.
 • If the objector overheard another occupant describe destructible evidence to the police, immediate entry might be justified to prevent the destruction of evidence, “if the objecting tenant cannot be incapacitated,” as in Illinois v. McArthur (2001) 531 US 326, 331-32 (defendant prevented from entering home until search warrant arrived).
 • Police could enter to investigate or prevent domestic violence.
 • Entry would be permissible to keep the peace while a fearful occupant collected belongings and departed safely.
 • Exigent or peacekeeping entry would permit plain-view seizures.
 Because the majority opinion seemed to take care to qualify the new rule as applying to evidence sought to be used against the objecting party, the consent of one occupant would appear to be valid as to search and seizure of evidence offered against the person who gave the consent, even though another occupant objected.
BOTTOM LINE: A joint occupant of a residence who is present and expressly refuses consent for entry or search can cancel another’s consent, as to evidence incriminating the objector.

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