muller-motion-to-suppress

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search.’ ” (Brown, supra, 216 Cal. App. 3d at p. 1451, italics added; see also In re Baraka H. (1992) 6 Cal.App.4th 1039, 1048 [8 Cal. Rptr. 2d 221]; United States v. Jones (10th Cir. 1983) 707 F.2d 1169, 1172.) The most reasonable inference from these facts is that the intruder intended to flee the residence to avoid capture and arrest. If a person has just burglarized a home and the resident is calling 911, the first and most likely reaction is one of flight to avoid arrest. The intruder did not intend to abandon the phone; it was simply left there in the heat of an escape attempt. C. The Burden is Upon the Prosecution to Prove That the Search was Reasonable Since the Police Did Not Possess a Search Warrant. A warrantless search or seizure is presumptively unreasonable and the prosecution has the burden of proving, if it can, some justification for a warrantless search or seizure. People v. Williams, 20 Cal. 4th 119, 136 (1999), rehearing denied, as modified. It is incumbent on the District Attorney to prove that this search was lawful, given the fact that it was warrantless and done without consent. D. The Warrantless Search of Defendant’s Cellular Phone Was Impermissible Because No Exception to the Warrant Requirement Existed. 1. No Exigent Circumstance Existed that Would Justify the Search of the Cellular Phone. The exigent circumstances doctrine constitutes an exception to the warrant requirement when an emergency situation requires swift action to prevent imminent danger to life. People v. Panah, 35 Cal.4th 395, 465 (2005). “‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’” Mincey v. Arizona, 437 U.S. 385, 392–393(1978). “There is no ready litmus test for determining whether such circumstances exist, and in People v. Muller Defendant’s Motion to Suppress Evidence 10
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 each case the claim of an extraordinary situation must be measured by the facts known to the officers.” Panah, supra, at 465. Generally, a court will find a warrantless search justified if the facts available to the officer at the moment of the search would cause a person of reasonable caution to believe that the action taken was appropriate. See People v. Duncan, 42 Cal.3d 91, 97–98 (1986). In this case, there was no emergency situation that required swift action to prevent imminent danger to life. Deputy Buenrostero articulated that in his belief that there was an exigent circumstance in his police report and stated “it was important to identify the owner of the phone and determine if he was the suspect, to prevent him from attempting to harm other residents in the area.” The gaping hole in the reports is that the time of the warrantless search is never put on paper. Nowhere in the reports does it say that at a specific time the phone was accessed. It is impossible to argue exigency when there is not a reliable timeline to attach the exigency to in the first place. The reports simply read that the deputies considered it an exigency, without stating the time, versus an act of sheer expediency. This articulated exigency was simply a decision that had everything to do with investigating on the fly, which later morphed into an exigency, possibly because they realized the warrantless search would become problematic. The problem with that for the Sheriff's Department is that the phone became the door that led to the treasure of evidence they located thereafter. Deputy Buenrostero also wrote in this report that an exigent circumstance existed because if they identified the owner of the phone and it was the suspect they would be able to locate him in the area more easily by locating a photo of him in Cal Photo. Again, no emergency existed to warrant an immediate search of the cellular phone. Violating a person’s Fourth Amendment right to be free from unreasonable searches and seizures cannot be negated simply to make it easier for law enforcement to apprehend suspects more easily. The circumstances of this case did not pose an emergency situation that would have justified making an exception to the warrant requirement. Based upon the facts People v. Muller Defendant’s Motion to Suppress Evidence 11
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muller-motion-to-suppress

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