By: Ray Hill, Professor Emeritus, Santa Rosa Junior College
One of the rewards of teaching is having contact with past students. Periodically, I get emails or phone calls about case law. Most calls are just confirming, “Is what I did OK?” And, almost 100% of the time, the officer or deputy is right on point with existing case precedent.
I want to share a recent conversation and question from K-9 Officer Guillermo (Memo) Arguelles of Daly City P.D. His proactive field work and application of case law led to getting a true “bad guy” off the street.
The facts are straightforward:
Officer conducts a traffic stop; the passenger in the rear seat has an outstanding warrant and is arrested; a search of the passenger incident to arrest revealed founds of handgun ammunition on her person; Officer searches the vehicle for the gun that fits the ammunition and finds three stolen handguns in the glove compartment. Turns out the driver of the vehicle is already a convicted felon.
Question was – “I believe I’m good, but just want to confirm?”
The answer is - Absolutely! In fact, one of the landmark cases that interpreted the “Automobile Exception” is United States v. Ross (1982) 456 U.S. 798 (See “From the Classroom” - “The Auto Exception – An Expanded History of Transportation” - LU Ref. CAB0015, February 14, 2022.
In the Ross decision, Washington D.C. officers made a traffic stop for drug investigation. The officers “plain viewed” a bullet on the front seat. A further search revealed a handgun in the glove compartment. A paper bag containing bindles of heroin packaged for sale and a leather pouch containing $3200 cash were found in the trunk. U.S. ruled officers had a “fair probability” or “substantial chance” to believe there was a firearm in the car. After finding the gun, a further search of the trunk was lawful to look for more firearms. Since a handgun could be found inside a paper bag, opening and plain view of the drug contraband was good. Since more drugs could be found in the pouch, that opening was good. Nexus, nexus, nexus!
The following California cases upheld the finding one gun equals a search for more guns and the further discovery of fortuitous evidence:
- Antioch P.D. case (Peo. v. Osborne (2009) 175 Cal App. 4th 1052). Initial discovery of a shotgun and pistol in the passenger area;
- Tuolumne S.O. case (Peo. v. Benities (1992) 9 Cal. App.4th 309). Initial discovery of a loaded 12-gauge shotgun and .380 pistol in the passenger area; and
- Modesto P.D. case (Peo. v. Nicholson (1989 207 Cal. App.3d 709). Viewing a shotgun gave rise to search for more weapons resulting in the finding of a handgun under the front seat.
For further information - (See Bob Phillips “The Fourth Amendment – Search and Seizure – An Update,” March 2022 - Pages 1302-1310).
Also, remember that 25850(a) P.C. makes it a crime to carry a loaded weapon inside a vehicle in a public place, on a public street, or prohibited area of an unincorporated area. 25850(b) P.C. permits a search for a firearm to determine “loaded status” when an officer has a reasonable basis for believing a firearm is inside a vehicle (like viewing ammunition). Failure to allow this search constitutes probable cause to arrest. Then the passenger area of the vehicle could be searched as incident to arrest.
Great field work! In speaking with Memo, ATF&E may be interested in this felon for federal prosecution and a much longer sentence than under California’s Determinate Sentencing Law, even with a prior “strike.”
NOTE: Comments offered by Officer Arguelles were published with his consent. Legal Updates does not publish your questions without your consent.