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Pretext Searches Are Not Lawful

“FROM THE CLASSROOM” by Ray Hill, Professor Emeritus, Santa Rosa Junior College
Ray Hill is a retired Police Lieutenant and Professor Emeritus at Santa Rosa Junior College. He has taught in the POST Basic Academy and Advanced Officer Training for 45 years.

   This legal issue keeps “popping up”. I had a recent inquiry from a former student and it was the subject of one of Bob Phillip’s past responses to a subscriber. So let’s quickly refresh this area to make sure we are all on the same page.

Scenario – You make an on-view misdemeanor arrest for trespassing on a light rail right-of-way. Your intent is to search incident to arrest. If evidence or contraband is found on the person, you will transport to the station or jail for arrest disposition/booking. If evidence isn’t found, then you will release the suspect on a citation to appear in court (providing there are no wants/warrants that come up or other offenses involved). Does case law give you the flexibility to make this type of discretionary search and disposition?

NO – This is a pretext search and is no more legal under the Fourth Amendment than using an impound/inventory search of a vehicle as a ruse to look for evidence or contraband. The ability to perform a search of a person as incident to an arrest comes with a custodial arrest and physical transportation for a law enforcement purpose (to the station for further investigation/disposition, to jail, to Juvenile Hall or a “601” facility, to a detox center, etc.). Courts have ruled is it the continuing exposure to an arrestee during transportation/facility disposition that creates a safety concern justifying a full search in the field

   There is no search incident to arrest on a “cite and release” offense even if actual custody and transportation could be done. An exception to this rule would be when there is an evidence destruction exigency and there is probable cause to believe evidence or contraband is being carried on the person. There is a need to secure this evidence prior to release on a citation. Example: Accepting a private person’s arrest for retail theft and there is probable cause to believe that stolen property is still on the person or hidden in the carried property of the arrestee. A peace officer is allowed to search the person and their property for the items that have alleged to have been taken (490.5(6) P.C.) Note: Store security personnel are only allowed by statute in examine items in plain view (490.5(3) P.C. Example: Due to COVID restrictions, one of the departments I work with here in the North Bay gives officers the discretion to cite out 11150 H&S “stand alone” suspects in the field providing they haven’t been driving or pose a clear danger to self or others. This is because the jail is citing these arrestees out after booking anyway. A logical search can be conducted to recover any evidence relating to U.I. so the suspect doesn’t walk away with contraband after release.

  Consent is always an alternative if you feel there is a need to search on a citation-release misdemeanor.

  I haven’t quoted any case law here. This has been very definitively accomplished my faculty colleague, Bob Phillips. Please review his 2022 Search and Seizure Update – 22nd Edition (Pages 1162-1166 and Pages 1170-1171) on the Legal Update Publishing Company website.

   Bottom Line – Pretext arrest searches are unconstitutional. You have to be truthful on the stand about your transportation motive when cross-examined by the defense attorney during a suppression motion. No “hunt for evidence” is worth committing a felony.

Stay Safe!

RH

BOUNTY HUNTER SHOT WHILE LOOKING FOR WANTED SUBJECT

Post Date:03/25/2022 11:00 PM

BOUNTY HUNTER SHOT WHILE LOOKING FOR WANTED SUBJECT

TYPE OF INCIDENT: ASSAULT WITH DEADLY WEAPON

DATE AND TIME OF INCIDENT: 03/25/22 @ 4:18 PM

LOCATION OF INCIDENT: 333 W. LEXINGTON, El Cajon

RESUME OF INCIDENT:

On 03/25/22, at approximately 3:51 PM, the El Cajon Police Department received a call from “Fugitive Warrants,” a private “fugitive recovery” business.  The reporting party stated two of their agents (not law enforcement officers) were checking 333 W. Lexington (an abandoned business) for a male adult who was wanted.

At approximately 4:18 PM, the reporting party again called the El Cajon Police Department and stated one of their agents suffered a head wound and a gun was involved.  Several El Cajon Police Department officers responded to the scene and located both of the agents outside of the abandoned building at 333 W. Lexington; one of agents was bleeding from his face.  Two El Cajon Police officers drove a marked patrol vehicle onto the property and rescued the injured agent, who said he was shot in the face.  The agent was transported to a nearby Hartland Fire and Rescue station.  The agent had what appeared to be a through and through wound to the side of his face.  He was transported by medics to a local hospital for treatment.

The victim and his partner agent stated they entered the building looking for a wanted subject.  Once inside, they encountered an unrelated subject, who became confrontational with them.  The subject retrieved what they believed was a handgun, at which time one of the agents shot a Taser at the subject.  The subject tackled the victim and began to strike him.  The victim said the subject then shot him in the face.  The other agent reported firing his Taser at the subject to get him off of the victim.  Both agents were able to evacuate themselves from the building.

El Cajon Police Department officers established a perimeter around the building and parked an armored vehicle outside of the front door.  Call-outs were made into the building and two subjects, one determined to be the suspect, eventually exited and were detained without incident.  The suspect had Taser darts embedded in upper torso.  Due to the suspect not having a firearm on his person, and not knowing if anybody else was inside the building, the San Diego Sheriff’s Department Bomb Arson Unit was requested to respond with a tactical robot to clear the structure.  Additionally, the San Diego County Sheriff’s Department aerial support unit, ASTREA, assisted.

Officers eventually entered the abandoned building and didn’t locate anyone inside.  It appeared multiple squatters have been living inside the building.  Detectives and officers conducted a search of the building and located evidence related to the incident.

Records checks of the suspect revealed he had an active felony probation violation arrest warrant.  After being interviewed by detectives, the suspect was booked into San Diego County Central Jail pursuant to the outstanding arrest warrant. 

The injured “Fugitive Warrants” agent was treated at the hospital and released later in the evening.

This investigation is ongoing. Anyone with information regarding this case should contact the El Cajon Police Department at (619) 579-3311.

COMPLETED BY:

Lt. Will Guerin

El Cajon Police Department

Patrol Watch Commander

REVIEWED BY:

Sgt. Kai Mandelleh

El Cajon Police Department

Patrol Division

DATE/TIME: 03/25/22 @ 10:30 PM

Mike Moulton

Chief of Police

Source: https://www.elcajon.gov/Home/Components/News/News/5606/112

JAVIER FIGUEROA RIVERA

JAVIER RIVERA
JAVIER RIVERA IS WANTED OUT OF SAN DIEGO FOR POSSESSION OF A CONTROLLED SUBSTANCE FOR SALE
WANTED PERSON

Last:RIVERA

First:JAVIER

Middle:FIGUEROA

Date of Birth:12/04/76

Sex:Male

Weight:158 lbs.

Height:5′ 07″

Eyes:Brown

Hair:Brown

Race/Ethnicity:Hispanic/Latin/Mexican

WARRANT

Last address:SAN DIEGO , CA

Warrant Nbr:CS314915-001

Warrant Type:Bench

Primary Charge:HS11378

Type of Crime:Felony

Date of Issue:03/03/2021

Bail Amount:$50,000.00

Court of Issue:South Bay Municipal

Court Appearance:Mandatory

JUDAH MCBREAIRTY

JUDAH MCBEARITY
JUDAH MCBEAIRTY WANTED

JUDAH STARR MCBREAIRTY

WANTED PERSON

Last:MCBREAIRTY

First:JUDAH

Middle:

Date of Birth:10/12/81

Sex:Male

Weight:180 lbs.

Height:6′ 01″

Eyes:Brown

Hair:Black

Race/Ethnicity:Black

WARRANT

Last address:SAN DIEGO , CA

Warrant Nbr:CD287347-000

Warrant Type:Bench

Primary Charge:PC417.8

Type of Crime:Felony

Date of Issue:07/07/2021

Bail Amount:$60,000.00

Court of Issue:San Diego Municipal

Court Appearance:Mandatory

Our Organization


U.S. Fugitive Warrants offices are based on the organizational structure of the Federal District Court system.  California is divided into four judicial districts that are referred to as the Northern, Eastern, Central, and Southern Districts of California. 

Northern District of California:

The Northern District comprises the counties of Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, Santa Clara, Santa Cruz, San Francisco, San Mateo, and Sonoma. 


Eastern District of California:

The Eastern District comprises the counties of Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Fresno, Glenn, Inyo, Kern, Kings, Lassen, Madera, Mariposa, Merced, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Stanislaus, Sutter, Tehama, Trinity, Tulare, Tuolumne, Yolo, and Yuba


Central District of California:

The Central District comprises the counties of Los Angeles, Orange County, Riverside, San Bernardino, San Luis Obispo, Santa Barbara and Ventura. 


Southern District of California:

The Southern District comprises the counties of Imperial and San Diego.