CA9: Records check of defendant’s DL not a search; neither is observation of license plate

“We are presented with a question this court has not yet resolved: Does a license plate check by a law enforcement officer that reveals information about a person’s car ownership, driver status and criminal record constitute a search under the Fourth Amendment? We agree with all the other courts that have considered the issue that it does not. We therefore hold that Defendant Ismael Diaz-Castaneda’s Fourth Amendment rights were not violated when a Clackamas County Deputy Sheriff stopped the truck in which Diaz-Castaneda was a passenger, asked him for identification and checked his driver’s license or Oregon identification card with radio dispatch. Accordingly, we affirm the district court’s denial of Diaz-Castaneda’s motion to suppress.” Defendant had standing to challenge the stop, but there was no Fourth Amendment claim in looking at a license plate. United States v. Diaz-Castaneda, 494 F.3d 1146 (9th Cir. 2007):

We agree that people do not have a subjective expectation of privacy in their license plates, and that even if they did, this expectation would not be one that society is prepared to recognize as reasonable. Cf. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring) (setting forth criteria for searches under Fourth Amendment). First, license plates are located on a vehicle’s exterior, in plain view of all passersby, and are specifically intended to convey information about a vehicle to law enforcement authorities, among others. No one can reasonably think that his expectation of privacy has been violated when a police officer sees what is readily visible and uses the license plate number to verify the status of the car and its registered owner. See Ellison, 462 F.3d at 561-62. Second, a license plate check is not intrusive. Unless the officer conducting the check discovers something that warrants stopping the vehicle, the driver does not even know that the check has taken place. See Walraven, 892 F.2d at 974. Third, the Supreme Court has ruled that people have no reasonable expectation of privacy in their vehicle identification number (VIN), which is located inside the vehicle but is typically visible from the outside. See New York v. Class, 475 U.S. 106, 113-14, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986). If it was not a Fourth Amendment search when the police officers in Class opened a car’s door and moved papers obscuring the VIN, it surely also was not a search when Helzer ran a computerized check of Diaz’s license plate.

Implausible travel plans coupled with defendant’s shaking so badly she could not hold the papers was reasonable suspicion. United States v. Contreras, 2007 U.S. App. LEXIS 17009 (10th Cir. July 18, 2007).*

Second consent was an intervening act of free will, even assuming the police exceeded the bounds of his consent to the first entry [something not at all clear]. Defendant was a suspect in possessing 2 tons of marijuana in a house. United States v. Chavez-Barraza, 2007 U.S. App. LEXIS 16971 (5th Cir. July 17, 2007):

Although the presumed violation and the second consent were temporally close, the remaining two factors favor a finding that Chavez-Barraza’s second consent was an independent act of free will. After the search, Chavez-Barraza was given the option to stay at Twig Road and chose to accompany the police to the Lettunich Street property. Chavez-Barraza’s knowledge that he was free to leave, coupled with his decision not to do so, indicate that his subsequent consent was an independent act of free will. Cf. United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006) (noting that there was “no evidence that [the defendant] knew he was free to leave,” while rejecting the government’s argument for a break in the causal chain).

Furthermore, the violation here, if indeed a violation occurred, was not flagrant. Chavez-Barraza does not dispute that he gave the officers a broad written consent to search the Twig Road residence for “contraband or other evidence of drug trafficking,” but rather contends that his personal papers were not included in the scope of that consent, and that Officer Triana unlawfully seized the mortgage statement by placing it in his pocket and carrying it outside. This conduct was “at worst a minor and technical invasion of [Chavez-Barraza’s] rights.” United States v. Sheppard, 901 F.2d 1230, 1235 (5th Cir. 1990). We therefore conclude that Chavez-Barraza’s consent was an intervening act of free will that broke the causal chain.