N.D.Cal.: “Let me see ___” when defendant was seized is not consent

“Let me see ___” when defendant was seized is not consent. United States v. Rosette, 2018 U.S. Dist. LEXIS 80985 (N.D. Cal. May 14, 2018):

2. . . .

Given the testimony of the officers in this case, there appears to be a systemic problem with the police conducting probation searches before receiving sufficient information. Sometimes officers assume incorrectly that a person’s probation status is enough, as occurred in this case. More commonly, officers receive confirmation from dispatch that a suspect is in fact subject to a search condition, but they learn nothing about the scope of the search condition. Searches in these circumstances could be overbroad, leading to the unnecessary suppression of evidence merely because a police department is being sloppy about the information it gathers about probationers, or about the information conveyed to officers in the field about those probationers.

. . .

3. Nor did Rosette consent to the search of his wallet. When evaluating whether consent to search is voluntary, courts look at the totality of the circumstances. In the Ninth Circuit, courts are directed to consider as part of the totality (1) whether the person was seized; (2) whether an officer had “overmastered” the suspect, for example by having his gun drawn; (3) whether the officer had administered Miranda warnings; (4) whether the officer informed the person of his right to refuse consent; and (5) whether the officer told the person that a search warrant could be obtained. See United States v. Kim, 25 F.3d 1426, 1432 (9th Cir. 1994); United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997). But courts also consider other issues, including the time and location of the search; whether the defendant was “outnumbered” by police; the tone and demeanor of the police during the encounter; and whether the person ever gave verbal or written consent. See United States v. Washington, 490 F.3d 765, 773-74 (9th Cir. 2007); Kim, 25 F.3d at 1432; see also United States v. Robertson, 736 F.3d 677, 681 (4th Cir. 2013).

Here, the first, second, and fourth factors weigh toward finding that Rosette did not consent to a search of his wallet. By the time Officer Caraway told Rosette “let me see your wallet,” Rosette was clearly seized. He had been ordered to put his hands over his head while Officer Caraway searched for weapons, directed to take off his backpack (which was then held by Officer Archini), and told to sit on the ground and keep his hands out of his pocket. He was not free to leave. See Chan-Jimenez, 125 F.3d at 1327; Washington, 490 F.3d at 775; see also United States v. Perez, 506 F. App’x 672, 674 (9th Cir. 2013). Though neither Officer Caraway nor Officer Archini had his gun drawn, Rosette was overmastered by the officers. Rosette was on the ground between two standing officers on an isolated median. Before taking out his wallet to give his food stamp card to Officer Archini, he had to ask for the officer’s permission. Finally, the fact that Officer Caraway did not tell Rosette that he could decline the request to see the wallet is significant in this context. See United States v. Mendenhall, 446 U.S. 544, 558-59 (1980).