Problems:

Arresting for the Wrong Offense

Arresting for the Wrong Offense:

As long as, when arrested, probable cause to arrest for some offense was present, it is irrelevant that defendant was arrested for the wrong offense.  (People v. Lewis (1980) 109 Cal.App.3^rd 599, 608-609; In re Donald L. (1978) 81 Cal.App.3^rd 770, 775.)  No sanctions will be imposed for having selected the wrong charge.

"Subjective intentions (of the arresting officer) play no role in ordinary, probable-cause Fourth Amendment analysis."  (Whren v. United States (1996) 517 U.S. 806, 814 [135 L.Ed.2^nd 89, 98].)

"(A)n officer's reliance on the wrong statute does not render his actions unlawful if there is a right statute that applies to the defendant's conduct."  (In re Justin K. (2002) 98 Cal.App.4^th 695; Stopping defendant for his third (rear window) brake light out, despite not knowing the correct legal justification for finding that the inoperable light was in violation of the Vehicle Code.)

See also People v. Rodriguez (1997) 53 Cal.App.4^th 1250; defendant arrested for homicide for which there was no probable cause, while the officer did have probable cause to believe defendant had in fact committed another homicide; arrest lawful.

Arresting defendant for "littering" (per P.C. §§ 374.4) for urinating in public was a lawful arrest even though the officer used the wrong offense.  Defendant's actions were in fact a violation of P.C. §§ 370, 372, for having created a public nuisance.  (People v. McDonald (2006) 137 Cal.App.4^th 521, 530.)

The United States Supreme Court recently ruled that so long as a police officer has probable cause to arrest for some offense, it matters not that, subjectively, the officer erroneously believed that he only had probable cause for another offense.  (Devenpeck vs. Alford (2004) 543 U.S. 146 [160 L.Ed.2^nd 537]; rejecting the Ninth Circuit Court of Appeals' opinion that arresting for the wrong offense was only lawful if the two offenses were "closely (or ‘factually') related," as described in Gasho v. United States (9^th Cir. 1994) 39 F.3^rd 1420, 1428; and Alford v. Haner (9^th Cir. 2003) 333 F.3^rd 972; petition granted.)

The Ninth Circuit was virtually alone on this issue, with other federal circuits following the same rule as California.  (See United States v. Pulvano (5^th Cir. 1980) 629 F.2^nd 1151; United States v. Saunders (5^th Cir. 1973) 476 F.2^nd 5; Klingler v. United States (8^th Cir. 1969) 409 F.2^nd 299; United States ex rel LaBelle v. LaVallee (2^nd Cir. 1975) 517 F.2^nd 750; Richardson v. Bonds (7^th Cir. 1988) 860 F.2^nd 1427; Knight v. Jacobson (11^th Cir. 2002) 300 F.3^rd 1272.)

However; an arrest for what the officer believes to be a felony, and which did not occur in the officer's presence, but which is in fact only a misdemeanor, may be an illegal arrest, per P.C. § 836(a)(1) (i.e., misdemeanor not in the officer's presence.), and/or the "stale misdemeanor" rule (see above).

Mistaken Belief in Existence of an Arrest Warrant or Fourth Waiver:

Mistaken Belief in Existence of Probable Cause to Arrest or Search, or that a Fourth Waiver Exists, Based upon Information received from Outside Sources:

Problem

Problem:  An officer arrests and/or searches a person under the mistaken belief that there is an arrest warrant outstanding for the person, the person is subject to a "Fourth Waiver" (i.e., he has previously waived his Fourth Amendment search and seizure rights), or the officer is given other erroneous information through either court or law enforcement channels.

Rule

Rule:  The officer's "good faith" will validate the resulting arrest and/or search so long as the erroneous information is from a "court source" (or a "legislative source," or any other non-"law enforcement source;" see below), as opposed to a "law enforcement source," and the officer is otherwise not on notice that the source of information is in error.  (People v. Downing (1995) 33 Cal.App.4^th 1641; Arizona v. Evans (1995) 514 U.S. 1 [131 L.Ed.2^nd 34].) 

This is because the Exclusionary Rule was implemented primarily to deter police misconduct; not court misconduct nor legislative errors.  Suppressing evidence due to erroneous information coming from the courts, or relying upon a legislative change later held to be unconstitutional, does not further the purposes of the Exclusionary Rule.  (Arizona v. Evans, supra. At pp. 15-16 [131 L.Ed.2^nd at pp. 47-48]; United States v. Leon (1984) 468 U.S. 897, 920-921 [82 L.Ed.2^nd 677, 697]; People v. Willis (2002) 28 Cal.4^th 22; People v. Tellez (1982) 128 Cal.App.3^rd 876, 880; Illinois v. Krull  (1987) 480 U.S. 340 [94 L.Ed.2^nd 364].)

However, the Court in Downing noted that once law enforcement is on notice of the defects in the court system, "good faith" may not apply the next time.  (People v. Downing, supra, at p. 1657, fn. 26; "We caution, however, that where the police department has knowledge of flaws in a record or data base system, it would not seem ‘objectively reasonable' to rely solely on it without taking additional steps to ensure its accuracy.")

Good Faith

"Good Faith" will not save an arrest and resulting search based upon erroneous information from a law enforcement source.  (See People v. Ramirez (1983) 34 Cal.3^rd 541, 543-544; arrest based upon an arrest warrant which was supposed to have been recalled six months earlier, but which was still reflected as outstanding in the police department's computer system.

Exception:  Where an officer is erroneously told that the defendant is on parole, only to find out later that he was subject to a probationary Fourth waiver instead, the search will be upheld.  It is not relevant what type of Fourth wavier applies to the defendant, the officer acting in "good faith."  (People v. Hill (2004) 118 Cal.App.4^th 1344.)

While evidence of a driving under the influence violation is subject to suppression in a criminal prosecution when it is discovered as a product of a traffic stop based upon outdated police records that the vehicle defendant was driving was stolen, that same evidence will not be suppressed in Department of Motor Vehicles administrative proceedings involving the suspension of defendant's drier's license.  (Park v. Valverde (2007) 152 Cal.App.4^th 877.) 

Non-Law Enforcement Sources:

Court Source

Court Source: Erroneous information concerning whether defendant was still on probation and subject to a Fourth Waiver, the error created by a court clerk, is a "court source." (People v. Downing, supra.)

            A probationary Fourth Waiver condition from a prior case that was legally in effect at the time of the search in issue justifies the search.   The fact that the prior conviction is subsequently vacated, thus nullifying the search condition, does not retroactively make the search in issue illegal.  (People v. Miller (2004) 124 Cal.App.4^th 216.)

See also People v. Fields (1981) 119 Cal.App.3^rd 386, where defendant's prior conviction was overturned on appeal, but only after officers conducted a probationary search based upon that conviction.  Same result as in Miller.  "(T)he integrity of the process is best served . . . by a rule which determines the validity of the search on the basis of the legal situation which exits at the time the search is made."  (Id., at p. 390.)

Legislative Source

Legislative Source: Similarly, relying upon a statute authorizing a warrantless administrative search, after which that statute is later declared to be unconstitutional, is lawful as having come from a "legislative source" (Illinois v. Krull (1987) 480 U.S. 340 [94 L.Ed.2^nd 364].), in that the exclusionary rule was not created to punish the Legislature any more than it was created to punish the courts.

See also; Michigan v. DeFillippo (1979) 443 U.S. 31, 37-38 [61 L.Ed.2^nd 343, 439-350]; good faith reliance on an ordinance that was later declared to be unconstitutional.

The alleged unconstitutionality of a statute, the violation for which serves as the basis for a search warrant, is irrelevant so long as officers reasonably relied upon the statute's validity at the time of the obtaining of the search warrant.  (United States v. Meek (9^th Cir. 2004) 366 F.3^rd 705, 714.)

Department of Motor Vehicles Source

Department of Motor Vehicles Source: Invalid information concerning the status of a vehicle's registration, entered into the system by a non-law enforcement "data entry clerk," is a non-law enforcement source. The officer's arrest and search in reasonable reliance upon records showing that the defendant's vehicle's registration was expired and that a fraudulent tab had been placed on the license plate (displaying false registration tabs, per V.C. §§ 20, 31, 4601 and 40000.1), was upheld under the "good faith" exception. (People v. Hamilton (2002) 102 Cal.App.4^th 1311.)

Law Enforcement Source

Law Enforcement Sources:

• When the source of the erroneous information is a police department's computer records, the resulting search is unlawful. (People v. Ramirez, supra; People v. Armstrong (1991) 232 Cal.App.3^rd 228, 241; Miranda v. Superior Court (1993) 13 Cal.App.4^th 1628.)

Others:

Parole

Parole is a law enforcement source. Erroneous information from a state Department of Corrections parole officer resulted in a belief that the defendant was subject to a Fourth Wavier. The resulting warrantless search was held to be illegal. (People v. Willis (2002) 28 Cal.4^th 22.)

But see People v. Tellez (1982) 128 Cal.App.3^rd 876, where erroneous information from Parole did not preclude the use of the "Good Faith" exception to the exclusionary rule.  This case is of questionable validity given the rule in Willis.

The Probation Department

The Probation Department:

At least within the Juvenile Court, Probation is more aligned with the courts than law enforcement, and is therefore a "court source."  Erroneous information from Juvenile Probation does not preclude application of good faith to save the resulting search.   (In re Arron C. (1997) 59 Cal.App.4^th 1365.)

But see People v. Howard (1984) 162 Cal.App.3^rd 8, at pp. 19-21, where Probation merely failed to inform a police officer of the correct limits of a particular probation search condition.  The Court held the resulting search to be illegal.  Howard, however, is criticized by both Downing, supra, at p. 1652, fn. 17, and Arron C., supra, at p. 1372.

People v. Ferguson (2003) 109 Cal.App.4^th 367:  Based upon the reasoning of People v. Willis, supra, held that an adult Probation Department, even when the error was made by a clerk, is a law enforcement source.  This Court questioned the continuing validity of In re Arron C., supra, but noted that Arron C. dealt with "Juvenile Probation," which works closer with the courts than does adult probation departments.

Arresting and Searching in Ignorance of an Existing Warrant of Arrest

Arresting and Searching in Ignorance of an Existing Warrant of Arrest:  An arrest and search of a person without probable cause cannot be validated after the fact when it is belatedly discovered that an arrest warrant exists for that person.  (Moreno v. Baca (9^th Cir. 2005) 431 F.3^rd 633, 638-641.)

See "Searching While In Ignorance of a Search Condition," under "Fourth Waiver Searches," below.

Minors and Curfew

Minors and Curfew:  There is a split of authority on the legality of "arresting" a minor for a curfew violation:

Minors violating curfew may be stopped, detained, and transported to a curfew center, the police station, or other facility where the minor can await the arrival of a parent or other responsible adult.  A search of the minor prior to placing him in a curfew center with other children is also reasonable.  (In re Ian C. (2001) 87 Cal.App.4^th 856.)

Before Ian C., it was held that a curfew violation did not justify the transportation of a minor to a police station for interrogation, such a custodial arrest not being one of the alternatives allowed under the Welfare and Institutions Code, referring to W&I §§ 601, 626, 626 and 626.5.  The Court further held that such a transportation, as an illegal arrest, was also a violation of the Fourth Amendment.  (In re Justin B. (1999) 69 Cal.App.4^th 879.)

In re Justin B. was criticized in the later decision of In re Charles C. (1999) 76 Cal.App.4^th 420.   The Court in Charles C. held that the arrest and transportation of a minor to a police station for a violation of curfew, at least where the minor's parents could not be located while still in the field, was not improper.  Under such circumstances, taking the minor to a police station is the least intrusive alternative left to the officer.  (W&I § 626)  Further W&I § 207(b)(2) provides that a minor as described by W&I § 601 (which includes curfew violators) may be taken into custody and held in a "secure facility," which includes a police station, so long as not confined with adults, for up to 24 hours while the minor's parents are located.  Lastly, the Court held that even if in violation of the Welfare and Institutions Code, the Fourth Amendment is not violated by transporting a curfew violator to a police station, so suppression of any resulting evidence is not required.

The Court further noted that taking a minor "into temporary custody," as authorized by W&I § 625, is the functional equivalent of an arrest.  (In re Charles C., supra, at p. 425, fn. 3; see also In re Thierry S. (1977) 19 Cal.3^rd 727, 734, fn. 6; and In re Justin B., supra, at p. 889.)

Note:  In re Charles C., supra, is the better rule.  In re Justin B., supra, criticized by both Charles C. (at pp. 426-427.) and In re Ian C., supra, at p. 860, is a strained decision at best, and of questionable validity.

Minors and Truancy

Minors and Truancy:

Observation of a minor carrying a backpack on the street during school hours within several miles of a high school was sufficient cause to stop and detain the minor and inquiry as to his status as a student.  When defendant was unable to provide a satisfactory reason for why he was out of school, and had identification in someone else's name, he was properly arrested for being truant (Ed. Code, § 48264) and searched incident to arrest.  (In re Humberto O. (2000) 80 Cal.App.4^th 237; recovery of dagger from his backpack was lawful.)