Is a Search Incident to a Citation, Not an Arrest, Lawful?
As the reader may know, police may not arrest a person for violation of an infraction. They must issue a citation and release the individual with a notice of when to appear in court.
The Gist of this Article: A warrantless search incident to issuing a citation for an infraction is illegal when the person cited is an adult (Macabeo) or a juvenile, as the following case summary explains.
This rather new case law was then applied to a juvenile matter, People v. D.W. (2017 DJDAR 7488), a case involving police discovering a firearm after a search of a juvenile’s backpack when police noticed the juvenile smelled like marijuana. The juvenile admitted to the police that he had smoked marijuana earlier.
The trial court denied the motion to suppress. It rejected the general argument that a strong smell of marijuana cannot establish probable cause to believe contraband is present. Thus, the search was legal. It found that based on the totality of the circumstances that the officers did have probable cause to search for contraband.
Counsel for the juvenile appealed this ruling to the First Appellate District, which reserved the trial court, relying upon Macabeo (discussed above).
The First Appellate District began its analysis by noting that in the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. The burden is on the people, not defendant, to show that that an exception applies. The exception at issue here is whether the search was incident to a lawful arrest.
The appellate court then acknowledged that a search incident to a custodial arrest may be permitted even if the formalities of the arrest follow the search.
Turning to the facts of the search of the backpack, the court stated that the officers had no evidence that he was guilty of anything more than an infraction, possession of less than 28.5 grams of marijuana (Health and Safety Code § 11357(b), punishable by a fine of no more than $100). Under California law, ingestion or possession of marijuana was a minor, non-jailable offense. People v. Hua (2008) 158 Cal.App.4th 1027, 1037.
The appellate court pointed out that even if the officers could reasonably conclude that the smell of marijuana and the juvenile’s admission of smoking marijuana meant he had more in his possession, it would have been speculation to conclude that he possessed enough to constitute a jailable offense. Id., at p. 1036; see also People v. Torres (2012) 205 Cal.App.4th 989, 995-996.
Consequently, the appellate court reversed the trial court’s ruling on the motion to suppress.
For more information about search and seizure issues, please click on the following articles: