Posted August 21, 2006

 People v. Ledesma (2006) DJDAR10936 

California Supreme Court Rules that Police Could Lawfully Answer Suspect's Telephone During Consent Search of Residence 

          A few days after robbing a gas station in San Jose, Fermin Rodriguez Ledesma returned to the station and killed the victim, who would have been the only witness against him. Police officers located Ledesma's residence and were admitted to search by two houseguests, in Ledesma's absence. The houseguests said they were expecting a call from Ledesma. When the telephone rang, an officer answered and listened as Ledesma made incriminating statements. At his capital trial, Ledesma sought suppression of the contents of his intercepted call on Fourth Amendment grounds. 

          The California Supreme Court ruled that testimony about the phone conversation was properly admitted. "The officers' interception of defendant's phone call when they were lawfully present in his apartment was not improper, because it was based on probable cause, and exigent circumstances justified the officers' failure to obtain a warrant. [They had] reason to believe that the incoming call would be from defendant and that by answering it, they would obtain information leading to his imminent capture. The delay required to obtain a warrant obviously would have resulted in the loss of this opportunity." 

          Courts have also approved the interception of calls when officers execute a search warrant in connection with crimes carried on by telephone, such as bookmaking and drug sales. People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163; US v. Ordonez (9^th Cir. 1983) 722 F.2d 530. (Recommended: Include interception authorization in search warrant application.) If entry and search are by consent only, calls may not be intercepted without specific consent, absent PC and exigency. People v. Harwood (1977) 74 Cal.App.3d 460.

Posted August 10, 2006

 US v. Flatter (9^th Cir. 2006) WL 2269055

 Ninth Circuit Rules a Pat-Down Search Unconstitutional Where There Was No Suspicion the Suspect Was Armed and Dangerous

           Postal inspectors suspected employee Andrew Milton Flatter of stealing prescription medicines from the mail. They placed decoy medical envelopes into his work area and when one of the envelopes disappeared, they asked Flatter to go into an office where a pat search "for officer safety" yielded the missing envelope. The trial court denied suppression of this evidence and Flatter was convicted of mail theft.

           The Ninth Circuit reversed the conviction and ordered the evidence suppressed. Quoting from several US Supreme Court decisions that have set the standard for a pat-down of a suspect as "a reasonable belief that he was armed and presently dangerous," the court said the inspectors articulated no reasons to support such a finding.

           Many cases have held that routine frisks or pat-downs for weapons violate the Fourth Amendment when there is no reasonable suspicion that the person is armed and dangerous. Officers who conduct pat-down searches should articulate in their reports the facts and circumstances suggesting that this particular suspect might be armed and dangerous. It is not sufficient to state simply, "We detained him and for our safety we patted him down and found X."