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The Fourth Amendment and the Autonomous Search

California

,

United States of America

Issue

Can police obtain the recordings from vehicles equipped with cameras that monitor driver activity when gathering evidence that the driver committed a crime?

Conclusion

Cal. Pen. Code § 1524 sets out the grounds on which a police search warrant may be issued. Subdivision (a)(19)(A) provides that data from a recording device installed by the manufacturer of a motor vehicle may be the subject of a search warrant when it constitutes evidence that tends to show the commission of a felony or misdemeanor offense involving a motor vehicle, resulting in death or serious bodily injury to any person. The statute notes that the data accessed pursuant to this paragraph shall not exceed the scope of the data that is directly related to the offense for which the warrant was issued.

The defnition of a "recording device" includes devices that are installed by the manufacturer of the vehicle for the purpose of retrieving data after an accident that records steering performance and/or the driver's seatbelt status. (Cal. Pen. Code § 1524, Cal Veh. Code § 9951)

No court decisions discussing the application of these provisions to in-vehicle cameras that monitor driver activity were identified.

In any event, under the automobile exception to the warrant requirement of the Fourth Amendment, the police may search an automobile and the containers within it without a warrant if they have probable cause to believe that the automobile contains contraband or evidence. (People v. Xinos, People v. Diaz, People v. Fews, People v. Superior Court)

The scope of a warrantless search under the automobile exception is limited by probable cause. (People v. Diaz, People v. Fews, People v. Xinos, People v. Superior Court)

If the police have probable cause to justify a warrantless seizure of a vehicle on a public roadway, they can conduct either an immediate or delayed search of the vehicle. (People v. Superior Court)

The act of driving a motor vehicle on a public highway under the influence of any drug or while in the possession of an open container of cannabis are not made lawful by the passage of Proposition 64. Therefore, the smell of recently burned cannabis supports a reasonable inference that the driver is illegally driving under the influence of cannabis, or, at the very least, driving while in possession of an open container of cannabis. (People v. Fews)

Whether a search is reasonable depends on the circumstances known to the officer when the search is conducted. (People v. Superior Court, People v. Xinos)

No decisions were identified that discussed whether recordings from in-vehicle cameras that monitor driver activity can be obtained by police when searching for evidence that the driver committed a crime. However, decisions discussing the seizure of sensing diagnostic module data and event data recorder data (information from other types of vehicle recording devices) may be instructive.

In People v. Diaz, the defendant appealed her conviction for involuntary manslaughter, contending that the downloading and admission of evidence obtained through the warrantless seizure of the sensing diagnostic module ("SDM") from her previously impounded vehicle violated her Fourth Amendment rights. The Court of Appeal for Fourth District rejected the defendant's argument, explaining that an individual's reasonable expectation of privacy is diminished in the person's automobile. The automobile exception to the Fourth Amendment warrant requirement provides that a police officer can seize contraband from an automobile without a warrant if the officer has probable cause to believe the contraband was being transported in the automobile. This exception has been extended to encompass searches backed by reasonable cause of other offenses and warrantless inventory searches of impounded vehicles. The download of the SDM data did not exceed probable cause in this case because the trial court found that speed and braking are always relevant in determining the causes of a collision. Further, there was no Fourth Amendment violation in admitting the SDM data because a person has no reasonable expectation of privacy in the speed of their vehicle or the use of their vehicle's brakes on a public highway. Speed and brake usage may readily be observed by others on the public highway.

On the other hand, People v. Xinos (ordered not published) the California Court of Appeal for the Sixth District held that there was no probable cause to download the SDM data where the download occurred long after the collision and criminal investigation and the officers who downloaded the SDM data did not believe relevant data would be found and were merely complying with a request from the district attorney's office. The Court found that while the defendant's driving on public roads was observable, the highly precise, digital data was not being exposed to public view or being conveyed to anyone else. The SDM data was an internal component of the defendant's vehicle that was protected by the Fourth Amendment. Thus, the defendant's subjective and reasonable expectation of privacy with regard to his own vehicle encompassed the SDM data.

Law

Cal. Pen. Code § 1524 sets out the grounds on which a police search warrant may be issued. Subdivision (a)(19)(A) provides that data from a recording device installed by the manufacturer of a motor vehicle may be the subject of a search warrant when it constitutes evidence that tends to show the commission of a felony or misdemeanor offense involving a motor vehicle, resulting in death or serious bodily injury to any person. The statute states that "recording device" has the same meaning as defined in subdivision (b) of Cal Veh. Code § 9951 and notes that the data accessed pursuant to this paragraph shall not exceed the scope of the data that is directly related to the offense for which the warrant was issued:

(a) A search warrant may be issued upon any of the following grounds:

[...]

(19)

(A) When the property or things to be seized are data, from a recording device installed by the manufacturer of a motor vehicle, that constitutes evidence that tends to show the commission of a felony or misdemeanor offense involving a motor vehicle, resulting in death or serious bodily injury to any person. The data accessed by a warrant pursuant to this paragraph shall not exceed the scope of the data that is directly related to the offense for which the warrant is issued.

(B) For the purposes of this paragraph, "recording device" has the same meaning as defined in subdivision (b) of Section 9951 of the Vehicle Code. The scope of the data accessible by a warrant issued pursuant to this paragraph shall be limited to the information described in subdivision (b) of Section 9951 of the Vehicle Code.

(C) For the purposes of this paragraph, "serious bodily injury" has the same meaning as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code.

[...]

Cal Veh. Code § 9951(b) defines "recording device" to include devices that are installed by the manufacturer of the vehicle for the purpose of retrieving data after an accident that records steering performance and/or the driver's seatbelt status:

(b) As used in this section, "recording device" means a device that is installed by the manufacturer of the vehicle and does one or more of the following, for the purpose of retrieving data after an accident:

(1) Records how fast and in which direction the motor vehicle is traveling.

(2) Records a history of where the motor vehicle travels.

(3) Records steering performance.

(4) Records brake performance, including, but not limited to, whether brakes were applied before an accident.

(5) Records the driver's seatbelt status.

(6) Has the ability to transmit information concerning an accident in which the motor vehicle has been involved to a central communications system when an accident occurs.

(c) Data described in subdivision (b) that is recorded on a recording device may not be downloaded or otherwise retrieved by a person other than the registered owner of the motor vehicle, except under one of the following circumstances:

(1) The registered owner of the motor vehicle consents to the retrieval of the information.

(2) In response to an order of a court having jurisdiction to issue the order.

(3) For the purpose of improving motor vehicle safety, including for medical research of the human body's reaction to motor vehicle accidents, and the identity of the registered owner or driver is not disclosed in connection with that retrieved data. The disclosure of the vehicle identification number (VIN) for the purpose of improving vehicle safety, including for medical research of the human body's reaction to motor vehicle accidents, does not constitute the disclosure of the identity of the registered owner or driver.

(4) The data is retrieved by a licensed new motor vehicle dealer, or by an automotive technician as defined in Section 9880.1 of the Business and Professions Code, for the purpose of diagnosing, servicing, or repairing the motor vehicle.

(d) A person authorized to download or otherwise retrieve data from a recording device pursuant to paragraph (3) of subdivision (c), may not release that data, except to share the data among the motor vehicle safety and medical research communities to advance motor vehicle safety, and only if the identity of the registered owner or driver is not disclosed.

(e)

(1) If a motor vehicle is equipped with a recording device that is capable of recording or transmitting information as described in paragraph (2) or (6) of subdivision (b) and that capability is part of a subscription service, the fact that the information may be recorded or transmitted shall be disclosed in the subscription service agreement.

(2) Subdivision (c) does not apply to subscription services meeting the requirements of paragraph (1).

(f) This section applies to all motor vehicles manufactured on or after July 1, 2004.

No decisions discussing the application of these provisions to in-vehicle cameras that monitor driver activity were identified.

In People v. Superior Court, 59 Cal.Rptr.3d 633, 151 Cal.App.4th 85 (Cal. App. 2007), the California Court of Appeal for the Sixth District explained that under the automobile exception to the warrant requirement of the Fourth Amendment, the police may search an automobile and the containers within it without a warrant if they have probable cause to believe that the automobile contains contraband or evidence. The Court noted that the scope of a warrantless search is limited by probable cause and the burden of proof is on the State to show that the search and seizure was reasonable under the Fourth Amendment. The Court also noted that if the police have probable cause to justify a warrantless seizure of a vehicle on a public roadway, they can conduct either an immediate or delayed search of the vehicle (at 645):

We agree. When the police have probable cause to believe an automobile contains contraband or evidence they may search the automobile and the containers within it without a warrant. (California v. Acevedo, supra, 500 U.S. at p. 580, 111 S.Ct. 1982.) The "`specifically established and well-delineated'" (Mincey v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290) automobile exception to the Fourth Amendment's warrant requirement is rooted in the historical distinctions between the search of an automobile or other conveyance and the search of a dwelling. (California v. Acevedo, supra, at p. 569, 111 S.Ct. 1982.) In Carroll v. United States (1925) 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543, the Supreme Court recognized "a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.",

It is also well established that "`[t]he scope of a warrantless search based on probable cause is no narrower— and no broader—than the scope of a search authorized by a warrant supported by probable cause.'" (California v. Acevedo, supra, 500 U.S. at p. 570, 111 S.Ct. 1982.) "`[I]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.'" (Ibid.) In addition, and as noted, "if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle." (Ibid.)

In the case of a warrantless search and seizure, the burden of proof rests on the People to show that the search and seizure was reasonable under the Fourth Amendment. (People v. Williams (1999) 20 Cal.4th 119, 128, 130, 83 Cal.Rptr.2d 275, 973 P.2d 52.) As a reviewing court, "[w]e exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment." (People v. Lenart (2004) 32 Cal.4th 1107, 1119, 12 Cal.Rptr.3d 592, 88 P.3d 498.) For the reasons set forth in this opinion, we hold that the search and seizure were reasonable under the automobile exception to the warrant requirement. In particular, based on his training and experience, Officer Wahl suspected that valuable trace evidence might be found in Nasmeh's vehicle. His affidavit averred that he knew that "people who commit murder and transport their victims in their vehicles may, in an attempt to conceal their guilt, try to clean their vehicle in an attempt to conceal or rid the vehicle of incriminating evidence." That averment, coupled with the mobility of the Jeep Cherokee and the accompanying risk that any trace evidence might be lost, sufficed to make the search and seizure reasonable under the Fourth Amendment even if there had been a constitutional problem with the search and seizure under the warrant issued by the magistrate.

In People v. Fews, 27 Cal.App.5th 553, 238 Cal.Rptr.3d 337 (Cal. App. 2018), the defendant appealed the magistrate's denial of his motion to suppress evidence. The defendant argued, in part, that the police did not have probable cause to search the vehicle that he was a passenger in based merely on the odor of cannabis and the officers' knowledge of a small amount of cannabis in the driver's possession because it was no longer illegal to possess a small amount of cannabis after the passage of Proposition 64. The California Court of Appeal for the First District disagreed and found that there was sufficient probable cause for the vehicle search because the act of driving a motor vehicle on a public highway under the influence of any drug or while in the possession of an open container of cannabis was not made lawful by the passage of Proposition 64. The Court noted that the evidence of the smell of "recently burned" cannabis and the half-burnt "cigar" containing cannabis supported a reasonable inference that the driver was illegally driving under the influence of cannabis, or, at the very least, driving while in possession of an open container of cannabis. The Court explained that under the automobile exception to the Fourth Amendment warrant requirement, a warrantless search of an automobile is permissible as long as the police have probable cause to believe the automobile contains evidence or contraband. Where such probable cause exists, a police officer may search the vehicle irrespective of whether the possession of cannabis is an arrestable offense (at 561-564):

"[A] warrantless search of an automobile is permissible so long as the police have probable cause to believe the car contains evidence or contraband." (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225, 158 Cal.Rptr.3d 261, 302 P.3d 574.) Probable cause posits "a fair probability that contraband or evidence of a crime will be found in a particular place."

[27 Cal.App.5th 562]

(Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527.) "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." (Id. at p. 243, fn. 13, 103 S.Ct. 2317.)

In People v. Strasburg (2007) 148 Cal.App.4th 1052, 56 Cal.Rptr.3d 306 (Strasburg), a different panel of this division held that a police officer had probable cause to search a vehicle based on the odor of marijuana, despite the defendant's presentation of a medical marijuana prescription. (Strasburg, at pp. 1058–1059, 56 Cal.Rptr.3d 306.) The court rejected the defendant's argument that the decriminalization of medicinal marijuana under the Compassionate Use Act of 1996 (CUA) bars a law enforcement officer from conducting a reasonable search based on the odor of marijuana. "[T]he officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession." (Strasburg, at p. 1060, 56 Cal.Rptr.3d 306.)

In Waxler, another division of this court followed Strasburg to conclude that a sheriff's deputy had probable cause to search the defendant's truck for contraband after smelling burnt marijuana near the truck and seeing burnt marijuana in the truck. (Waxler, supra, 224 Cal.App.4th at p. 719, 168 Cal.Rptr.3d 822.) "[N]onmedical marijuana—even in amounts within the statutory limit set forth in [Health and Safety Code] section 11357, subdivision (b) —is ‘contraband’ and may provide probable cause to search a vehicle under the automobile exception." (Waxler, at p. 715, 168 Cal.Rptr.3d 822.) Thus, the deputy "was entitled to investigate to determine whether appellant possessed marijuana for personal medical needs and to determine whether he adhered to the CUA’s limits on possession. ... It is well settled that even if a defendant makes only personal use of marijuana found in the passenger compartment of a car, a police officer may reasonably suspect additional quantities of marijuana might be found in the car." (Id . at pp. 723–724, 168 Cal.Rptr.3d 822.)

Fews provides no compelling reason to depart from Strasburg and Waxler after the passage of Proposition 64, particularly in light of the facts of the instant case. The continuing regulation of marijuana leads us to believe that Strasburg and Waxler still permit law enforcement officers to conduct a reasonable search to determine whether the subject of the investigation is adhering to the various statutory limitations on possession and use, and whether the vehicle contains contraband or evidence

[238 Cal.Rptr.3d 345]

of a crime. (See Strasburg, supra, 148 Cal.App.4th at p. 1060, 56 Cal.Rptr.3d 306; Waxler, supra, 224 Cal.App.4th at pp. 721, 723–724, 168 Cal.Rptr.3d 822; see also People v. Zuniga (Colo. 2016) 372 P.3d 1052, 1059 [holding that despite Colorado's legalization of marijuana, "a substantial number of other marijuana-related activities remain unlawful

[27 Cal.App.5th 563]

under Colorado law. Given that state of affairs, the odor of marijuana is still suggestive of criminal activity."]; Robinson v. State (2017) 451 Md. 94, 98–101, 152 A.3d 661, 664–665 ].) Due to the odor of marijuana emanating from the SUV and Mims, as well as Mims's admission that there was marijuana in his half-burnt cigar, there was a fair probability that a search of the SUV might yield additional contraband or evidence.

Fews contends that marijuana is no longer contraband in California after Proposition 64. Again, Fews overstates the effect of Proposition 64. Section 11362.1, subdivision (c), provides that "[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest." (Italics added.) Driving a motor vehicle on public highways under the influence of any drug (see Veh. Code, § 23152, subd. (f) ) or while in possession of an open container of marijuana ( Veh. Code, § 23222, subd. (b)(1) ; People v. McCloskey (1990) 226 Cal.App.3d Supp. 5, 9, 277 Cal.Rptr. 509 ) are not acts "deemed lawful" by section 11362.1. On the contrary, "[s]ection 11362.1 does not permit any person to [¶] ... [¶] ... [p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle" ( Health & Saf. Code, § 11362.3, subd. (a)(4) ) or "[s]moke or ingest cannabis or cannabis products while driving" a motor vehicle (id. , subd. (a)(4) ). Here, the evidence of the smell of "recently burned" marijuana and the half-burnt cigar containing marijuana supported a reasonable inference that Mims was illegally driving under the influence of marijuana, or, at the very least, driving while in possession of an open container of marijuana. Because this was not conduct "deemed lawful" by section 11362.1, Fews cannot validly rely upon the "not contraband" designation of section 11362.1, subdivision (c), in order to avoid the holding in Waxler .4

Fews cites In re D.W. (2017) 13 Cal.App.5th 1249, 221 Cal.Rptr.3d 332 for the position that the smell of marijuana and a defendant's admission to

[27 Cal.App.5th 564]

recently smoking marijuana do not establish probable cause to search the defendant's vehicle because it is mere conjecture to conclude that within the vehicle there is marijuana amounting

[238 Cal.Rptr.3d 346]

to more than just an infraction. However, In re D.W. involved a warrantless search of a defendant's person incident to arrest, which requires independent probable cause for the arrest. (In re D.W., at p. 1253, 221 Cal.Rptr.3d 332.) In contrast, the instant matter involves a vehicle search pursuant to the automobile exception, which requires probable cause that the vehicle contains contraband or evidence of a crime. Where such probable cause exists, a law enforcement officer may search the vehicle "irrespective of whether possession of up to an ounce of marijuana is an infraction and not an arrestable offense." (Waxler, supra, 224 Cal.App.4th at p. 721, 168 Cal.Rptr.3d 822.)

For these reasons, we conclude there was sufficient probable cause for the warrantless search of the SUV. This, in turn, provides additional support for the validity of the patsearch of Fews on officer safety grounds because, as the magistrate found, the vehicle search would have left one of the officers outnumbered by Mims and Fews, who was wearing baggy clothes that could conceal a weapon. (See Collier, supra, 166 Cal.App.4th at p. 1377, fn. 1, 83 Cal.Rptr.3d 458 ["[t]he wearing of baggy clothing, coupled with other suspicious circumstances, ... furnishes the requisite facts to support a patdown for weapons so that the search of the car could be safely performed"].)

No decisions were identified that discussed whether recordings from in-vehicle cameras that monitor driver activity can be obtained by police when searching for evidence that the driver committed a crime. However, decisions discussing the seizure of sensing diagnostic module data and event data recorder data (information from other types of vehicle recording devices) may be instructive.

In People v. Diaz, 213 Cal.App.4th 743, 153 Cal.Rptr.3d 90 (Cal. App. 2013), the defendant appealed her conviction for involuntary manslaughter, contending that the downloading and admission of evidence obtained through the warrantless seizure of the sensing diagnostic module ("SDM") from her previously impounded vehicle violated her Fourth Amendment rights. The Court of Appeal for Fourth District rejected the defendant's argument and affirmed the judgment of the trial court. The Court first explained that an individual's reasonable expectation of privacy is diminished in the person's automobile. The automobile exception to the Fourth Amendment warrant requirement provides that a police officer can seize contraband from an automobile without a warrant if the officer has probable cause to believe the contraband was being transported in the automobile. The Court explained that this exception has been extended to encompass searches backed by reasonable cause of other offenses and warrantless inventory searches of impounded vehicles. The Court noted that the download of the SDM data did not exceed probable cause in this case because the trial court found that speed and braking are always relevant in determining the causes of a collision (at 753-754):

The United States Supreme Court has long held that the expectation of privacy is diminished in the automobile. (Carroll v. United States (1925) 267 U.S. 132, 153, 156, 45 S.Ct. 280, 69 L.Ed. 543 [contraband may be seized from an automobile without a warrant if the officer has probable cause to believe the contraband was being transported in the automobile].) This automobile exception to the warrant requirement has been extended to encompass searches backed by reasonable cause of other offenses and warrantless inventory searches of impounded vehicles. (See, e.g., Wyoming v. Houghton (1999) 526 U.S. 295, 303, 119 S.Ct. 1297, 143 L.Ed.2d 408 [holding that when officers have probable cause to search a car, “the balancing of the relative interests weighs decidedly in favor of allowing searches of a passenger's belongings” that are capable of concealing the object of the search because “[p]assengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars”]; United States v. Ross (1982) 456 U.S. 798, 807, fn. 8, 102 S.Ct. 2157, 72 L.Ed.2d 572 [stating that historically, persons have been “on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate's prior evaluation of those facts”], 823, 102 S.Ct. 2157 [stating that “an individual's expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband”]; South Dakota v. Opperman (1976) 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 [in upholding an inventory search, the court noted the diminished expectation of privacy in automobiles given “pervasive and continuing governmental regulation and controls,” and “the obviously public nature of automobile travel”]; Cardwell v. Lewis (1974) 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 [upholding the warrantless examination

[213 Cal.App.4th 754]

of a vehicle's exterior based upon the lesser expectation of privacy].) But the Supreme Court has also recognized some legitimate expectation of privacy in vehicles deserving of protection. (See Arizona v. Gant (2009) 556 U.S. 332, 345, 129 S.Ct. 1710, 173 L.Ed.2d 485 [recognizing that a motorist's privacy interest in his vehicle, although less substantial than the privacy interest in his home, “is nevertheless important and deserving of constitutional protection”]; see also United States v. Ortiz (1975) 422 U.S. 891, 896, 95 S.Ct. 2585, 45 L.Ed.2d 623, fn. omitted [“A search, even of an automobile, is a substantial invasion of privacy. To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search”].)

As noted, defendant does not dispute that the police had probable cause for the search. The trial court specifically found “there was probable cause to download the SDM, because speed and braking are always relevant in determining the causes of a collision.” The scope of a warrantless search authorized by the automobile exception is “no broader and no narrower than a magistrate could legitimately authorize by warrant.” (United States v. Ross, supra, 456 U.S. at p. 825, 102 S.Ct. 2157.) In Ross, the Supreme Court made clear that, even when the automobile exception applies, “[t]he scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize.” (Id. at p. 823, 102 S.Ct. 2157, fn. omitted.) The scope of a warrantless search of an automobile “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (Id. at p. 824, 102 S.Ct. 2157.) Thus, the vehicle is protected by the Fourth Amendment, and an individual's reasonable expectation of privacy as to the vehicle yields only as to places where there is probable cause to search. The scope of the search did not exceed probable cause.

The Court explained that the California Supreme Court has upheld vehicle searches on the basis that the vehicle was an instrumentality of the crime. The California Supreme Court has also held that when police lawfully seize a vehicle as an instrument of the crime, they may postpone the search of the car until a time and place where the examination can be performed in accordance with sound scientific procedures. The Court found that in this case, the defendant's vehicle, as an instrumentality of the crime of involuntary manslaughter, was lawfully seized by police and subsequent examination fo the vehicle for the purpose of examining its evidentiary value did not constitute a search under the California and federal Constitutions (at 754-756):

As noted, research did not reveal any published California case addressing the constitutionality of the warrantless downloading of SDM data from a lawfully impounded vehicle. However, in a series of cases, the California Supreme Court has upheld vehicle searches on the basis that the vehicle was an instrumentality of the crime or was itself evidence. In People v. Teale (1969) 70 Cal.2d 497, 75 Cal.Rptr. 172, 450 P.2d 564, the court upheld the warrantless seizure of an automobile when the officers had cause to believe that a murder victim had been shot in the automobile, and the court further found no Fourth Amendment violation in a criminalist's subsequent examination of the automobile, during which spatters of the victim's blood were found on the interior. (People v. Teale, supra, at pp. 508–511, 75 Cal.Rptr. 172, 450 P.2d 564.) The court

[213 Cal.App.4th 755]

held, “ ‘[W]hen the police lawfully seize a car which is itself evidence of a crime rather than merely a container of incriminating articles, they may postpone searching it until arrival at a time and place in which the examination can be performed in accordance with sound scientific procedures.’ ” (Id. at p. 508, 75 Cal.Rptr. 172, 450 P.2d 564.)

In North v. Superior Court (1972) 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, superseded by statute on another ground as stated in People v. Loyd (2002) 27 Cal.4th 997, 1000, 119 Cal.Rptr.2d 360, 45 P.3d 296, the police impounded the defendant's vehicle, which they believed had been used in a kidnapping, examined its interior without a warrant, and found the victim's fingerprints. In addition, they determined that the vehicle's tires and wheel span were consistent with impressions and measurements taken at the crime scene. (North v. Superior Court, supra, at p. 305, 104 Cal.Rptr. 833, 502 P.2d 1305.) The court upheld the post-seizure examination of the vehicle, explaining that the vehicle had been seized contemporaneously with the defendant's arrest, “as evidence of the alleged kidnapping; the car was believed to be the very instrumentality used to commit the kidnapping.” (Id. at p. 306, 104 Cal.Rptr. 833, 502 P.2d 1305, fn.omitted.)

Next, in People v. Rogers (1978) 21 Cal.3d 542, 146 Cal.Rptr. 732, 579 P.2d 1048, the court upheld the warrantless search of a van the police had impounded from the defendant upon his arrest for committing lewd acts on children because the police had cause to believe it had been an instrumentality of the crime. The court explained, “[W]hen officers, incidental to a lawful arrest, seize an automobile or other object in the reasonable belief that the object is itself evidence of the commission of the crime for which the arrest is made, any subsequent examination of the object for the purpose of determining its evidentiary value does not constitute a ‘search’ as that term is used in the California and federal Constitutions. [Citations.] In light of the evidence indicating that the pornographic snapshots were taken in the van and might depict the victims of the reported assaults, [the officer] clearly had reason to believe that the van was itself evidence of the crimes for which defendant had been arrested.” (Id. at pp. 549–550, 146 Cal.Rptr. 732, 579 P.2d 1048, citing North v. Superior Court and People v. Teale.)

In People v. Griffin (1988) 46 Cal.3d 1011, 251 Cal.Rptr. 643, 761 P.2d 103 (Griffin), the court upheld the taking of blood samples from the defendant's lawfully impounded truck. The court explained that “the truck in this case was itself evidence. The bloodstains that had soaked into the floorboard of the truck were clearly an appropriate subject of scientific examination and within the limits of the instrumentality exception.” (Id. at pp. 1024–1025, 251 Cal.Rptr. 643, 761 P.2d 103.) The court observed, “The propriety of a warrantless seizure and search where the vehicle is itself evidence or the instrumentality of a crime is implicit in a number of United States Supreme Court decisions as well.” (Id. at p. 1025, 251 Cal.Rptr. 643, 761 P.2d 103, collecting cases.)

[213 Cal.App.4th 756]

In this case, defendant's vehicle was itself an instrumentality of the crime of vehicular manslaughter. Defendant concedes it was lawfully seized. Consistent with the California Supreme Court cases discussed above, the officers' “subsequent examination of the [vehicle] for the purpose of examining its evide

Alexsei publishing date:
2021-12-29 18:03:19.248004
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