ALL EVIDENCE SEIZED PURSUANT TO THE SEARCH OF MR. *'S

CAR MUST BE SUPPRESSED BECAUSE IT WAS SEIZED IN

VIOLATION OF MR. *'S FOURTH AMENDMENT RIGHTS

A. There Was No Probable Cause to Search the Vehicle Interior, the Trunk or Containers within the Trunk.

Warrantless searches are " `per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.' " Mincey v. Arizona, 437 U.S. 385, 390 (1978), quoting Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted). Law enforcement officers may conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains evidence of a crime, and it is likely that, due to exigent circumstances, the vehicle will be unavailable for search by the time a warrant is obtained. Carroll v. United States, 267 U.S. 132 (1925). ⁽¹⁾ The showing of probable cause must be equivalent to that which would be required for a search warrant to issue. United States v. Dunn, 946 F.2d 615, 618-19 (9th Cir. 1991) (citing California v. Carney, 105, S. Ct. 2066, 2069 (1985). The police may search the entire vehicle and open any packages or luggage found there which could reasonably hold the items for which they have probable cause to search. United States v. Ross, 456 U.S. 798 (1982). But see California v. Acevedo, 111 S. Ct. 1982 (1991) (holding that if police have probable cause as to a specific package within a car, but no probable cause as to the vehicle itself, they may conduct a warrantless search only of the container).

Probable cause arises when officers have knowledge of trustworthy facts sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been committed. United States v. Patterson, 492 F.2d 995, 997 (9th Cir.), cert. denied, 419 U.S. 846 (1974). It is the government's burden to demonstrate that the automobile exception to the warrant requirement is applicable. United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989).

Here, the only probable cause to believe that anything was present in Mr. *'s vehicle was the statement of Mr. ___. At the time Mr. ___ gave his statement, however, Officer Good knew that Mr. ___ was a felon, on parole, and that he had recently been released from prison. He also knew that Mr. ___ suspected Mr. * of having cuckolded him while he was in prison. Finally, Officer Good knew that Mr. ___ was uninjured, while Mr. * was lying on the grass bleeding across the street. Under these circumstances, Mr. ___'s statements could hardly be deemed reliable.

Information provided by an informant is evaluated under the "totality of the circumstances test" announced in Illinois v. Gates, 462 U.S. 213 (1983). See generally United States v. Angulo-Lopez, 791 F.2d 1394, 1396-99 (9th Cir. 1986). This test emphasizes both the trustworthiness of the informant and the basis of the informant's knowledge. Gates, 462 U.S. at 231. See also Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). A purported showing of probable cause that is lacking in one or both of the two prongs of the Aguilar-Spinelli test may be upheld only if "[there is] a `substantial basis' for the finding [of probable cause]." Angulo-Lopez, 791 F.2d at 1396 (quoting Gates, 462 U.S. at 237). Nonetheless, there must be a showing that "the [officer] affiant believes the informant to be trustworthy . . . ." Id.

The trustworthiness of an informant may be established in several ways.

If the informant has provided accurate information on past occasions, he may be presumed trustworthy on subsequent occasions. . . . When the information provided in the past involved the same type of criminal activity as the current information, the inference of trustworthiness is even stronger. . . . Veracity may also be established through admissions against penal interest. . . . Finally, an informant's reliability may be demonstrated through independent police corroboration of the information provided.Id. at 1397 (citations omitted).

The first of the factors identified in Angulo-Lopez, the informant's past performance, does not support the informant's reliability here. There is no information that any of the officers were familiar with Mr. ___.

Nor is Mr. ___'s credibility enhanced by the subject matter of the "tip". Although an inference of trustworthiness is enhanced if the new information involves "the same type of criminal activity", Angulo-Lopez, 791 F.2d at 791, there are no previous "tips" by Mr. ___.

With respect to the third Angulo-Lopez factor, there is no information indicating that Mr. ___'s statements may have been against his penal interest. In fact, the opposite was true. Mr. ___ later admitted that he stabbed Mr. *. Exhibit A at 42. Accordingly, this potential source of trustworthiness is also unavailable here.

The final Angulo-Lopez factor is corroboration by independent police investigation. This factor, too, is absent here. In United States v. Delgadillo-Vasquez, 856 F.2d 1292 (9th Cir. 1988), marshals received a tip from an informant described as reliable by a United States Customs inspector. The tip advised them that a fugitive named "Alvarado" lived at a particular address under the name of "Delgadillo". The tip went on to note that the fugitive was planning a drug transaction.

The marshals placed the address under surveillance, and observed a Latin male exist the apartment. They also determined that an individual named Delgadillo did, indeed, reside there. The marshals had only a twenty year old photograph of Alvarado, however, and could not identify the Latin male from that photograph.

The Delgadillo-Vasquez court determined that this information was not sufficient to establish probable cause to arrest Delgadillo. Id. at 1296-98. That court's holding was based upon the marshals' failure sufficiently to corroborate the tip. Id. Indeed, the only corroboration was the fact that an individual named Delgadillo did in fact reside in the apartment. Other than that, the marshals made no attempt to verify that Alvarado lived at the apartment or that the Latin male they observed was Alvarado. Thus, "the tip was not reliable because the investigating marshal had no means of knowing from whom it came or the past performance of the informant; the tip did not identify any specific drug transaction or time; and the marshals conducted virtually no independent investigation to validate the tip . . . ." Id. at 1297.

Here, the police also failed to corroborate Mr. ___'s tip. Apparently, no effort whatsoever was made to corroborate any of the "details" provided by him, the only possible basis for probable cause to believe that Mr. * had committed any offense. Rather, all the police knew was that a domestic disturbance had occurred, and that Mr. ___ had claimed that he was threatened by a man that the police knew to be injured at the time that they arrived. Moreover, Mr. ___ acknowledged that it was in fact he who was chasing Mr. *. In short, none of the "details" that Mr. ___ provided were corroborated.

Thus, none of the Angulo-Lopez factors provide an inference in support of Mr. ___'s trustworthiness. Accordingly, the information provided by him cannot be credited.

Because, under the totality of the circumstances, the search of the automobile is unsupported by probable cause, all evidence seized pursuant to it should be suppressed. Wong Sun v. United States, 371 U.S. 471 (1963).

B. There Were No Exigent Circumstances to Justify the Search of the Vehicle.

The existence of probable cause standing alone is not sufficient to justify a warrantless search or seizure of an automobile. United States v. Spetz, 721 F.2d 1457, 1471 (9th Cir. 1983). But see United States v. Normandeau, 800 F.2d 953, 957 (9th Cir. 1986) (citing United States v. Bagley, 772 F.2d 482, 490-91 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986)) (holding that an automobile parked in a public place may be searched without warrant as long as police have probable cause to conduct search).

In Bagley, the Court relied on the Supreme Court's opinion in California v. Carney, 471 U.S. at 386 (1985), to justify its holding that exigent circumstances are no longer needed for warrantless searches of vehicles parked in public places as long as the scope of the search is reasonable and accompanied by probable cause. Bagley, 772 F.2d at 491 (citing Carney, 471 U.S. at 392). The Bagley court's reading of Carney was that under the automobile exception, probable cause now alone suffices to justify a warrantless search of a vehicle parked in a public place. See also Normandeau, 800 F.2d at 957.

The Bagley court's reading of Carney as providing a clear directive to abandon the exigent circumstances requirement, however, is not justified.

Under Carroll, 267 U.S. at 153, warrantless searches of automobiles are justified only when two factors are present: probable cause to believe that the automobile contained contraband, and exigent circumstances associated with the automobile. In Cardwell v. Lewis, 417 U.S. 583, 595 (1974) a warrantless seizure of a car parked in a public commercial lot was upheld only where the officers believed the car would reveal evidence of a crime, and that the defendant's family might attempt to move the vehicle if it were not seized. See also United States v. Pappas, 735 F.2d 1232 (10th Cir. 1984) (holding automatic inventory search of a car, upon arrest of its owner, was not justified when the car was legally parked and others could have taken the car on behalf of the defendant).

Contrary to the Bagley court's reading of Carney, Carney actually strengthens the exigent circumstances requirement laid out in Carroll and reaffirmed in Cardwell. In Carney, the crucial issue was whether a mobile home's use as a readily mobile vehicle justified application of the motor vehicle exception to the warrant requirement. The Carney court recognized that the "capacity to be 'quickly moved' was clearly the basis of the holding in Carroll," and that subsequent court cases have consistently recognized ready mobility as one of the principal, if not the principal, bases of the automobile exception. Carney, 471 U.S. at 390. Even though the respondent's mobile home possessed many attributes of a home, the court held that because the mobile home, like the automobile in Carroll, was readily mobile, the vehicle clearly fell within the scope of the automobile exception, Id. at 393.

Because, in this case, exigent circumstances did not exist, the vehicle was not readily mobile, and the officers would have had time to obtain a warrant without danger of the evidence vanishing, the warrantless search of the automobile was unjustified.

C. There Was No Valid Consent to Search the Vehicle.

Police may conduct a warrantless search of a vehicle if they have obtained the valid consent of the car's owner. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The validity of that search is to be determined by the totality of the circumstances. Id.

Here, there was no consent to search Mr. *'s vehicle. Officer Myers' testimony at the detention hearing indicated that all he did prior to searching the vehicle was consult with Officer Good. Exhibit A at 30-32. He never indicated that any consent was ever given by Mr. *. Id. Accordingly, there was no consent.

Even if there was, however, consent, the scope of any warrantless search based on consent must not exceed the scope of the consent. The U.S. Supreme Court recently held that in searches of automobiles, consent to search the car may extend to containers within the car if it was objectively reasonable for the police to conclude that the general consent to search the car included consent to search containers within the car which might have drugs in them. Florida v. Jimeno, 111 S. Ct. 1801 (1991). In Jimeno, police overheard what they believed to be a phone call involving a drug transaction, and they followed his car. After he made a right turn at a red light without stopping, police pulled him over. They then told him that they suspected him of carrying narcotics in his car and would like to search his car for drugs. Jimeno consented. During the search, police found a closed brown paper bag in the car and opened it, finding narcotics. The Supreme Court held that because Jimeno had consented to a search for drugs, he by implication consented to a search of any containers that might hold drugs. Id. at 1801.

In the instant case, police did not tell Mr. * what they were searching for, nor did they seek consent for any specific area - i.e., the trunk - within Mr. *'s car. Therefore, police had no right to open the trunk.

Further, any consent to search Mr. *'s car is tainted by the coercive behavior of the police as defined in United States v. Mendenhall, 446 U.S. 544 (1980). Therefore, the consent was not voluntary.

D. The Fruits of the Illegal Search Must be Suppressed.

As all searches of the vehicle, its trunk, and all containers within these areas were in violation of the Fourth Amendment, all evidence obtained as fruits of these searches must be suppressed. Wong Sun, 371 U.S. 471 (1963).

SUPPEVID.CJA/CJA SEMINAR 1992

1. The exigent circumstances requirement of Carroll has been modified by subsequent case law. (See Part D below.)