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Is a Search Incident to a Citation, Not an Arrest, Lawful?

In People v. Macabeo (2016) 1 Cal. 5th 1206, a case originating out of the Torrance Superior Court (and defended by Karen Bird, Esq.), the California Supreme Court considered whether a warrantless search of a suspect’s cell phone was legal when the officer stops a suspect for a Vehicle Code infraction of rolling through a stop sign while riding a bicycle.  The stop took place around midnight.

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.
In Macabeo, officers found pictures of underage girls on his cell phone that appeared to be child pornography.  The parties later stipulated that such photos indeed violated Penal Code § 311.11(a).  However, after reviewing the United States Supreme Court’s Fourth Amendment cases on the arrest exception, the Macabeo court made it clear that a lawful arrest supported by probable cause provides authority for a search, but “there is no exception for a search incident to citation.”  Macabeo, p. 1218.

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.

Torrance Police StationTorrance Police Station

At the trial level, the defense attorney for the juvenile asked the judge to throw out the evidence (through a motion to suppress evidence of the gun) because having the odor of marijuana about oneself is not a crime and even being under the influence of marijuana is no longer a crime [under Prop 64 according to the juvenile’s attorney],”  So there was no probable cause to search him and therefore, there was not even probable cause to arrest or even cite the minor (and thereby, search him incident to a valid arrest).  Moreover, “there was no reasonable suspicion that he was armed and dangerous.”

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:
  1. An Admission Is Inadmissible If After an Illegal Search As the Fruit of a Poisonous Tree
  2. Have a Cellphone? Arrested? New Case Says Police Need a Warrant to Search Your Phone Contents
  3. Civil Case Versus Cops for Unreasonable Detention and Search
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