SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

taking someone into physical custody, does not require the
suppression of any evidence, in that these rules are statutory, or
non-constitutionally based case law, only, and evidence is
suppressed only when it’s discovery is the direct product of a
constitutional violation. (Barry v. Fowler (9 th Cir. 1990) 902 F.2 nd
770, 772; People v. Donaldson (1995) 36 Cal.App.4 th 532; People
v. Trapane (1991) 1 Cal.App.4 th Supp. 10; see also Jackson v.
Superior Court (1950) 98 Cal.App.2 nd 183; and People v. McKay
(2002) 27 Cal.4 th 601, 607-619, a violation of V.C. § 21650.1
(riding a bicycle in the wrong direction); and People v. Gomez
(2004) 117 Cal.App.4 th 531, 539, seat belt violation, citing Atwater
v. City of Lago Vista (2001) 532 U.S. 318 [149 L.Ed.2 nd 549];
United States v. Miranda-Guerena (9 th Cir. 2006) 445 F.3 rd 1233;
People v. Bennett (July 21, 2011) 197 Cal.App.4th 907, 918.)
A violation by a police officer of a state statute, such statute
limiting the officer’s right to make a custodial arrest or a
search, so long as not also in violation of the Fourth
Amendment, does not result in the suppression of the
resulting evidence unless mandated by the terms of the
statute. While a state is empowered to enact more
restrictive search and seizure rules, violation of those rules
that are not also a Fourth Amendment violation, does not
invoke the Fourth Amendment’s exclusionary rule.
(Virginia v. Moore (2008) 553 U.S. 164 [170 L.Ed.2 nd
559]; People v. Xinos (2011) 192 Cal.App.4 th 637, 653.)
“The violation of a state statute, standing alone, does not
form the basis for suppression under the Fourth
Amendment.” (People v. Hardacre (2004) 116
Cal.App.4 th 1292, 1301; United States v. Miranda-
Guerena (9 th Cir. 2006) 445 F.3 rd 1233.)
“It is elemental that the illegality tainting evidence and
rendering it inadmissible is illegality flowing from the
violation of a defendant’s constitutional rights—primarily
those involving unlawful searches and seizures in violation
of the Fourth Amendment to the United States
Constitution and the essentially identical guarantee of
personal privacy set forth in article I, section 19, of the
California Constitution. [Citations.] Evidence obtained
in violation of a statute is not inadmissible per se unless the
statutory violation also has a constitutional dimension.”
(People v. Brannon (1973) 32 Cal.App.3d 971, 975;
People v. Pifer (1989) 216 Cal.App.3 rd 956, 962-963.)
© 2012 Robert C. Phillips. All rights reserved
160