Cal.6: RS existed for only a few seconds and dissipated but police continued the detention; consent came during invalid arrest

Defendant consented to a patdown which produced a small hard object that resulted in his handcuffing. It was a diamond, and the handcuffing stopped, but the stop didn’t. “We agree with defendant that, once police realized the object was a diamond, they lacked probable cause to keep him under arrest for drug possession. The only other basis for the arrest—a vague and uncorroborated claim by an informant—did not constitute probable cause.” Thus, the request for consent came during an unlawful arrest, and the consent was invalid. People v. Espino, 2016 Cal. App. LEXIS 415 (6th Dist. May 24, 2016):

By contrast, once the police here discovered that the object in defendant’s pocket was a diamond, the facts known by the officers no longer supported his arrest for drug possession. And nothing in the record suggests they held—or reasonably could have held—a good faith belief to the contrary. Accordingly, we do not believe the Attorney General’s reliance on Atwater, Whren, and Devenpeck supports the search of defendant’s car. This view would allow the police to search and arrest a motorist for any offense—even where officers know there is no evidence that any other offense has been committed—so long as there is probable cause to support a traffic violation (e.g., speeding). We disagree with this view.

The United States Supreme Court underscored this principle in its most recent traffic stop case, Rodriguez, supra, 135 S.Ct. 1609. In that case, a police officer lawfully stopped Rodriguez for driving on a highway shoulder, a violation of state law. After checking his driver’s license, the officer issued a warning ticket to Rodriguez. But instead of releasing him, the officer continued to detain him until another officer arrived with a drug-sniffing dog. The dog alerted to the presence of drugs, whereupon police searched the car and found methamphetamine. The Supreme Court held the search unconstitutional in the absence of reasonable suspicion to support the dog search. (Id. at p. 1616.) Like the officers here, the police in Rodriguez could have arrested and searched Rodriguez based on the traffic violation—but they did not. Instead, they issued him a warning ticket. Having done so, their subsequent search for drugs could not be justified based on probable cause for the traffic violation. This result makes clear that police may not use probable cause for a traffic violation to justify an arrest for an unrelated offense where, under the facts known to police, they have no probable cause supporting the unrelated offense. (Cf. id. at pp. 1618-1622 [citing Atwater and Whren] (dis. opn. of Thomas, J.).)

For these reasons, we hold the search of defendant’s car violated the Fourth Amendment. Defendant did not provide valid consent for the search, and the prosecution failed to show the search was valid under any other exception to the Fourth Amendment’s warrant requirement. Accordingly, we will reverse the judgment and remand with instructions to grant the motion to suppress the evidence seized in the car search. As to the evidence seized in the warrant search of defendant’s home, a hearing is required to determine the validity of the warrant absent the evidence seized in the car search.

h/t to counsel