Sunday, July 27, 2008

Case o' The Week: The Fourth Reappears in Car Searches, Caseres

Did the subject of a warrantless car search have the skill of Houdini and the strength of Hercules? See decision at *20.

The Ninth ain't buying it, in a w
onderful decision that restores some of the battered Fourth Amendment protections associated with car searches. United States v. Caseres, No. 06-50546, 2008 LEXIS 15575 (9th Cir. July 21, 2008), decision available here.

Players: Important win by CD Cal AFPD Jonathan Libby. Decision by Judge Pregerson, joined by Judges Bright (8th Cir.) and Wardlaw.

Facts: An unmarked L.A. cop car tailed Caseres’s car for blocks at 9:45 p.m. The cops were suspicious of Caseres’s failure to signal a turn and the car’s tinted windows. Id. at *2. [Ed. note: see what Whren has wrought!]

When Caseres lawfully parked, a uniformed cop got out and told Caseres to stop as he walked toward his house. Id. at *3. “Fuck you, I’m home,” the defendant replied. Id. As the cop tried to stall for time Caseres opined, “I’m going to kick your fuckin’ ass,” which earned him a shot of pepper spray, which then devolved into a footchase. Id. at *4-*5.

“Well after” he had been taken into custody, the cops searched his car and found a gun and ammo. Id. Caseres was charged with § 922(g), and entered a conditional plea to preserve his suppression motion. Id. at *6.

Issue(s): “We must decide whether Lt. Murphy had a reasonable basis to detain Caseres, and whether the warrantless search of the passenger compartment of Caseres’s car was constitutional as a search incident to a valid arrest, an inventory search, or a parole search.” Id. at *6.

Held: 1. Incident to Arrest? “The district court improperly held that the search of Caseres’s car was constitutionally permissible as a search incident to arrest. [W]e conclude that the search of Caseres’s car was characterized by neither the spatial nor the temporal proximity to the place and time of the arrest required to constitute a valid search incident to arrest.” Id. at *11.

2. Inventory Search? “We reverse and hold that the police lacked the authority to impound and conduct an inventory search of Caseres’s car – which was lawfully parked on the street two houses away from his residence – because doing so did not serve any community caretaking purpose.” Id. at *25.

3. Parole Search: “Because the record does not establish that Lt. Murphy was aware that Cal. Pen. Code § 3607 applied before he ordered the search of Caseres’s car, the search is not justified by the state’s interest in supervising probationers.” Id. at *30-*31 (emphasis in original).

Of Note: Because there’s so much of value to mine in Caseres, the parole search issue is an easily-overlooked nugget. Note that Caseres was on parole, and the cops knew it before the search. Id. at *29. In California, parolees for offenses committed after January 1, 1997, must agree to a warrantless search condition. Id. at *29. Here, however, the cop didn’t determine whether Caseres was on California parole, for a post-‘97 offense, before the car search. Id. at *29.

Hence a good, common-sense rule: the cops have to know the subject is on parole and has a search condition before that favorite excuse works for a warrantless search. Id. at *30-*31.

How to Use: The “search incident to arrest” holding is probably the rule with the broadest potential application in Caseres. The Court reviews the confusing law on this warrant exception. Id. at *12. In sum, there’s much conflicting law on the temporal and spatial limitations permitted to still permit a search. (“So much for bright lines.”) Id. at *23.

Caseres gathers the different scenarios, and concludes that – in this case – the defendant had been gone from the car too long, and was too far away, to justify the search. Caseres should be the starting point for this fact-intensive analysis in future “incident to arrest” search cases.

For Further Reading: Unfortunately, it is Judge – and not Justice – Pregerson, so he can’t decide the big issue: “whether law enforcement officers must demonstrate a need to preserve evidence relating to the crime of conviction to justify a warrantless vehicular search incident to arrest.” Id. at *20.

That’s the question the Supremes have up in Arizona v. Gant, 128 S. Ct. 1443 (2008). What the Honorable H.P. can do is to emphasize that Belton – the vehicle search case – has been “sharply criticized” by many Justices. Id. at *12 & n.5.

Judge Pregerson’s footnote five is the starting point for the right result in Gant. Of course, the right result is not always the SCOTUS outcome. See "Simple Justice" blog commentary here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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