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LU Ref# CAI00032
March 15, 2023
Author Ref. No: Vol. 28 No. 3
LU Ref# CAI00032
March 15, 2023
Author Ref. No:   Vol. 28 No. 3

Robert Phillips
Deputy District Attorney (Retired)

“Without Freedom of Speech, we wouldn’t know who the idiots are.”
Prolonged Detentions and Seizure of an Item that is Lawful to Possess
COURT CASE REFERENCE: United States v. Baker (9th Cir. Jan. 30, 2023) 58 F.4th 1109

The plain sight observation of a non-contraband item (such as a car key) during a patdown search for weapons does not warrant the seizure of that item.  The continued detention done for the purpose of investigating other non-criminal activity violates the Fourth Amendment.  An “intervening circumstance” (e.g., flight) that occurs after the illegal seizure of property does not make that property retroactively admissible via an “attenuation of the taint” theory.  
Defendant Terrance Baker, along with Walter Collin Beatty, robbed a Sprint store in Los Angeles at gunpoint, taking a bunch of cellphones.  The semi-automatic pistol defendant used had a distinctive black frame and silver slide, as observed on a store’s videotape.  A week after the robbery, LAPD Patrol Officers Byun and Salas observed defendant loitering with others at the Nickerson Gardens housing complex.  The officers knew that defendant was a gang member and that he did not reside at Nickerson Gardens.  Suspecting that he was therefore trespassing (it not being discussed what specific trespass statute might apply), the officers decided to make contact.  Seeing the officers approach, defendant lifted his shirt to show the officers he was unarmed.  Officer Byun, however, patted him down anyway.  No weapons or contraband were found.  Officer Byun did observe, however, a car key attached to defendant’s belt loop. (Although not described, the key was apparently of the now-common type that included an electronic car fob built into it.) After obtaining defendant’s driver’s license, the officer took the car key off of defendant’s belt loop. Officer Byun then walked away with the car key and defendant’s driver's license to an adjacent parking lot, clicking on the key in an attempt to identify which car matched the key.  Defendant himself was “directed” to follow the officer and then “commanded” to stop and put his hands behind his back.  (The legality of what was at this point—if not earlier—obviously a detention was not contested or discussed.)  Asked if he had a vehicle with him, defendant responded that he did not.  But low and behold, when Officer Byun pressed the car lock on the key, he observed the headlights flash on a nearby red Buick parked on the street.  Officer Byun told defendant: “You don't have a car? That’s your car right there, it’s blinking, man.” Although handcuffed, defendant decided he didn’t want any part of this and took off running—handcuffs and all—only to be apprehended a short distance away. Officer Byun managed to lose the car key in this chase. Defendant told the officers the car belonged to his mother and that he ran “because he was scared.”  Meanwhile, another officer who responded to the scene looked into the locked Buick, later testifying that he “was able to see underneath the front seat what appeared to be the butt of a handgun.”  Breaking into the car (the key having been lost), a handgun with a distinctive black frame and silver slide was recovered.  It was later determined that this gun matched the description of the gun used in the robbery of the Sprint store.  Defendant was charged in federal court with a “Hobbs Act” robbery (i.e., a robbery affecting interstate commerce) and conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a), and brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii).  The “brandishing” charge stemmed from defendant holding the pistol to a Sprint store employee’s head as Walter Beatty took iPhones from the store’s safe.  After defendant’s motion to suppress the handgun was denied, a jury (with Beatty—apparently given a deal in exchange for his cooperation—testifying against defendant at the trial) convicted him of all charges.  Sentenced to 209 months (nearly 17½ years) in prison, defendant appealed.