Sunday, February 18, 2018

Can Police Search Your Car For Marijuana in California

Here is the scenario, an officer stops you for a traffic violation and subsequently sees evidence of possession of a legal amount of marijuana.  Can they proceed to search your car on that basis?  No, the law allows for possession of recreational marijuana and prohibits police from conducting exploratory searches on that basis alone.  Specially, H&S § 11362.1(c) clearly provides that marijuana possessed under lawful circumstances is “not contraband nor subject to seizure,” nor does a subject’s lawful conduct pursuant to section 11362.1(a) “constitute the basis for detention, search, or arrest.” Also, People v. Torres et al. (2012) 205 Cal.App.4th 989, 993-998, held that a warrantless search upon the speculative belief that more marijuana than lawfully allowed may be found is illegal.

There are instances where a police officer may be justified in detaining you however.  H&S § 11362.3(a) makes it illegal (an infraction) to smoke or ingest marijuana (1) in a public place (subd. (a)(1), which arguably includes in a vehicle while out on the public streets or in any other public place), (2) anywhere where smoking tobacco is prohibited (subd. (a)(2)), (3) within 1,000 feet (including simple possession, whether or not it’s being smoked, if on the grounds) of a school, day care center, or youth center while children are present (subd. (a)(3) & (5)), or (4) while driving or operating, or when riding in the passenger seat or compartment, of a motor vehicle, boat, vessel, or aircraft (subd. (a)(7) & (8)). It is also illegal for anyone to (5) possess (whether or not it’s being smoked) an open container or open package of marijuana while driving, operating, or riding in the passenger seat of a motor vehicle, boat, vessel, or aircraft. (Subd. (a)(4)).

Based on the foregoing, As long as you are over 21, there are no open containers inside the vehicle and you are not smoking the pot inside the car, there would be no legal basis to conduct a search of the vehicle for more marijuana.

Sunday, February 11, 2018

Does Submission To An Officer’s Authority Constitute Consent To Draw Blood in a DUI Case?

No, says People vs. Ling (2017) 15 Cal App 5th Supp. 1
The Court held the People bear the burden of proving that a consent was, in fact, freely and voluntarily given. “This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” (Bumper v. North Carolina (1968) 391 U.S. 543, 548.) To be effective, consent must be voluntary. Voluntariness is to be determined by considering the “totality of the circumstances.” It is also the rule that “assent” alone is not necessarily “consent.” “Consent, in law, means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice, to do something proposed by another . . . . [Assent] means mere passivity or submission, which does not include consent.” Neither is there consent when all we have is the mere submission to an express or implied assertion of authority. Defendant in this case was told that “(b)ecause you’re under arrest for DUI, you have to submit to a chemical test, which is a test of either your breath or your blood.” Never was he asked if he was willing to summit to such a test. Telling him that he “has to submit” to a chemical test of his blood communicates a reality where the chemical test will be conducted against defendant’s will, if necessary. He was also never given the opportunity of choosing between providing a breath sample or a blood sample.

In Ling, the Court found the defendant’s lack of physical or verbal resistance to submitting to a blood test, by itself, does not mean that he had consented to the procedure. In sum, the Court noted that “(t)he People fail to point to any evidence in the record showing that defendant consented to the blood draw nor could they.” The evidence instead shows that defendant submitted to a blood draw and that this submission was due to the officer's expression of lawful authority. As concluded by the Court; “absent evidence to the contrary, it cannot be presumed that individuals under arrest could reasonably construe a direction from an arresting officer that they must take some action as a mere query as to whether they will voluntarily consent to it. Consequently, the totality of the circumstances shows defendant did not consent to the blood draw.” The blood results, therefore, should have been suppressed.

In most DUI arrests the officer will read the suspect an advisement informing him or her of their obligations and rights to submit to a chemical test in the state of California.  Here, that was not done.

It is clear that the arresting officer in this case was either totally oblivious to, or chose to ignore, the plethora of recent (i.e., post Missouri v. McNeely (Apr. 17, 2013) 569 U.S.__ [133 S.Ct. 1552].) cases discussing the need for a full explanation of the V.C. § 23612 implied consent rules, along with evidence that a DUI arrestee do more than merely acquiesce, and actually consents, to a blood or breath test, in order for the results to be admissible in court. The Court in fact makes some reference to the need for law enforcement officers to stay up on the law if their arrests are going be of any benefit. ( Courtesy of Robert Phillips).

The rule in this case is as follows: The results of a blood test in a DUI case are inadmissible absent evidence that the defendant did in fact consent to the taking of a blood sample. A mere submission to authority is not consent.