• Searches of Vehicles
• Leaning Into a Vehicle as a Search
• Minimal Intrusiveness Into a Vehicle
• Fruit of the Poisonous Tree
• Inevitable Discovery

A police officer who, during an otherwise lawful traffic stop, opens the car’s door and leans into it without probable cause or any other particularized justification, violates the Fourth Amendment.  Leaning into a vehicle constitutes a search.  Any products of that illegal act are subject to possible suppression.  Failure to argue possible applicable search and seizure issues waives them.

In the early morning hours of May 6, 2018, San Francisco Police Officer Kolby Willmes noticed defendant Malik Ngumezi sitting in the driver’s seat of a vehicle in a gas station.  Officer Willmes also noticed that the vehicle did not have any license plates; an apparent violation of V.C. § 5200(a).  Not observed by the officer was a bill of sale affixed to the lower passenger-side corner of the windshield.  Because a gas pump blocked access to the driver’s side, Officer Willmes walked to the passenger side of the car and—according to defendant—opened the passenger door, leaned into the car, and asked defendant for his driver’s license and vehicle registration.  (Officer Willmes later testified that he could not remember whether he opened the door and leaned into the car, or whether he merely talked to defendant through the open window.  The Court, therefore, assumed that defendant’s version of the facts is what had actually happened.)  Unable to produce anything other than a California identification card, it was quickly determined that defendant’s license was suspended and that he’d received three prior citations for driving with a suspended license.  SFPD policy requires officers to impound a vehicle in any case where the driver is unlicensed and has had at least one prior citation for driving without a license.  In compliance with this policy, preparations were made to tow defendant’s car.  A pre-impound inventory search of the car resulted in the recovery of a loaded .45 caliber handgun under the driver’s seat.  Upon determining that defendant had a prior felony conviction, he was arrested for being a felon in possession of a firearm.  Charged in federal court with a violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm), defendant’s motion to suppress was denied.  He therefore submitted to a bench trial upon stipulated facts and was convicted.  Sentenced to 18 months in prison, defendant appealed.

The Ninth Circuit Court of Appeal reversed.  In the district (trial) court, defendant had argued only that Officer Willmes should have seen the bill of sale affixed to the lower passenger-side corner of the windshield, eliminating any need (or right) to ask defendant for his identification; an argument the trial court judge rejected.  On appeal, however, defendant argued instead that opening the door to his car and leaning into it constituted a search that violated the Fourth Amendment absent the applicability of an exception to the warrant requirement.  This seemingly new argument, not considered by the trial court, raised a bunch of new issues on appeal. 

(1)  Was it Waived   The Court here first noted that defendant did in fact raise with the trial court the Fourth Amendment issue of the legality of a police officer leaning into his car, but only in a footnote in his written documents.  With prior authority to the effect that “a perfunctory request, buried amongst the footnotes, does not preserve an argument on appeal” (see Coalition for a Healthy California v. FCC (9th Cir. 1996) 87 F.3rd 383, 384, fn. 2.), the Ninth Circuit ruled here that had the Government responded with an argument that defendant had forfeited this issue, the Court would have agreed and rejected defendant’s appeal.  But the Government failed to do so.  End of issue. 

(2) Leaning into a Suspect’s Vehicle as a Fourth Amendment Search:  Assuming defendant’s account of what transpired after he was legally contacted was what actually happened (noting that the officer couldn’t remember what he did or didn’t do), the Court held that without “probable cause, or any other particularized justification, such as a reasonable belief that the driver poses a danger,” a police officer may not open the door to a vehicle and lean inside.  To do so constitutes a violation of the Fourth Amendment as an “unreasonable search.”  The landmark case on this issue is the U.S. Supreme Court decision of New York v. Class (1986) 475 U.S. 106.  In Class, an officer, during a lawful traffic stop, opened defendant’s car door and reached inside for the purpose of moving papers off the dashboard so that he could read the vehicle’s “Vehicle Identification Number” (i.e., “VIN”) which, had it not been covered, would have been visible from the outside.  Citing the fact that “the governmental interest in highway safety served by obtaining the VIN is of the first order,” and that the VIN’s location on the dashboard is “ordinarily in plain view of someone outside the automobile,” the High Court held that the officer’s actions of opening the door and reaching inside to push the papers aside, being minimally intrusive, were lawful.  However, it was also noted in Class that had the defendant’s vehicle’s VIN been visible from the outside, “there (would have been) no justification for governmental intrusion into the passenger compartment to see it.” (Id., at p. 119; italics added.)  Finding none of the New York v. Class justifications (i.e., “the specific need—finding the VIN—and its minimal intrusiveness”) to be present in this case, the Court here found that Officer Willmes action of leaning into defendant’s car to be in violation of the Fourth Amendment. The Court also rejected the People’s argument that what Officer Willmes did was minimally intrusive, holding that “(a)lthough the intrusion here may have been modest, the Supreme Court has never suggested that the magnitude of a physical intrusion is relevant to the Fourth Amendment analysis.”  (At p. 1289; a questionable conclusion; see Note below.)  The Court instead imposed an unprecedented “bright-line” standard, i.e., that “opening a door and entering the interior of a vehicle constitutes a Fourth Amendment search,” and, absent some legal justification, is illegal.  

(3) The Appropriate Remedy and Missed Issues:  Lastly, the Court determined that the only available remedy here is the suppression of the gun.  In so holding, however, the Court noted this conclusion might have been different had the Government thought to make certain legal arguments.  First, it was noted that as a rule, only “evidence obtained as a ‘direct product of an illegal search or seizure,’ as well as ‘evidence later discovered and found to be derivative of an illegality,’ is subject to suppression.” (i.e., the “fruit of the poisonous tree” doctrine; quoting Utah v. Strieff (2016) 136 S. Ct. 2056).  Here, the gun was found during a pre-impound inventory search of the car, and not as the product of the officer illegally leaning into his car.  Also, under the “inevitable discovery rule,” it is apparent that defendant’s unlicensed status and prior citations for this same offense, which is what triggered the impoundment of his car per SFPD policy, would have inevitably led to the subsequent discovery of the gun during a lawful pre-impound inventory search.  (Whether or not the “community caretaking theory” would have prevented the lawful impoundment of defendant’s car was not discussed.)  The Government has the burden of proof on these issues.  It failed, however, to even argue their applicability.  Having failed to raise these issues, they were held to be waived.

It is painful just to read this case.  First, it’s inexcusable, and embarrassing, for a trained law enforcment officer to come to court with no recollection of how the contact went down.  That’s why you make notes and write reports; to give you something with which to “refresh your memory.” Secondly, for the U.S. Attorney to miss so many potentially case-saving issues that are simply first year law school stuff, is equally, if not more so, inexcusable and embarrassing.  But aside from all this, I think the Ninth Circuit is also wrong in concluding that the “minimal intrusive” doctrine does not apply. The Ninth Circuit’s cited authority for holding that the issue of “minimal intrusiveness” is not relevant in this case is United States v. Jones (2012) 565 U.S. 400.  Jones held it to be a Fourth Amendment violation to attach a GPS tracker to a suspect’s vehicle without a warrant, the tracker itself being “a small, light object that [did] not interfere in any way with the car’s operation.”  The Ninth Circuit’s theory here was that if it wasn’t minimally intrusive in Jones, given the physical size of the tracker itself and its lack of interference with the car’s operation, then the “minimally intrusive” argument must not be an issue at all.  Whether or not such a tracker is “small (and) light,” or the fact that it didn’t affect the car’s operation, would seem to me, however, to be irrelevant to the magnitude of the Fourth Amendment violation at issue in Jones.  If you read Jones, it is readily apparent that it was the nature of the intrusion, and the volume of the information provided to law enforcement via the tracker, all without a warrant, that made the placing of a tracker on a person’s car a constitutional issue.  It is also clear that contrary to the Ninth Circuit’s belief that “the Supreme Court has never suggested that the magnitude of a physical intrusion is relevant to the Fourth Amendment analysis,” there is a whole body of law, including Supreme Court cases, talking about what has become known as the “minimal intrusion doctrine.”  (E.g., see People v. Robinson (2012) 208 Cal.App.4th 232, 246-255; citing the U.S. Supreme Court case of Illinois v. McArthur (2001) 531 U.S. 326, 330.)  The Supreme Court itself in New York v. Class—the case the Ninth Circuit cites here for its authority—notes that the officer’s actions of opening a suspect’s car door and reaching into it in order to move some papers off the dashboard was “little more intrusive than a demand that respondent—under the eyes of the officers—move the papers himself.”  (pg. 118; italics added.)  Also, the U.S. Supreme Court in Illinois v. McArthur, supra, notes that; “(w)hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.”  (pg. 330; italics added.)  But all this would have been totally irrelevant to this case had someone in the U.S. Attorney’s Office thought to make the argument that finding the gun was not the product of an illegal “leaning” into defendant’s car, or that the gun would have inevitably been found anyway.  It’s inexcusable that these arguments weren’t made.