Patdown for identification unlawful; to hold otherwise rewrites Terry

A California appellate court held yesterday that a patdown solely for identification violates Terry and is unconstitutional. People v. Garcia, 145 Cal. App. 4th 782, 52 Cal. Rptr. 3d 70 (2d Dist. December 14, 2006):

The Attorney General candidly acknowledges “[i]t does not appear that either the California or the United States Supreme Court has specifically decided the issue of whether a limited search of a person for identification following a detention is constitutional.” The Attorney General cites two cases sanctioning such a patdown, State v. Flynn (1979) 92 Wis. 2d 427 and State v. Wilcox (1981) 180 N.J.Super. 452, 435 A.2d 569 and two cases which disallow such a patdown, State v. Biegel (1990) 57 Wn. App. 192 and State v Webber (1997) 141 N.H. 817, 694 A.2d 970.

We need not look to other jurisidictions to decide this case. We would have to indulge in legal legerdemain to justify a patdown search for identification. In fact, it would require a rewriting of Terry v. Ohio, supra, which we could not and would not undertake even if we were so inclined. Here, the record is devoid of any concern that appellant was armed and dangerous. The sole reason for the patdown was to gather evidence of identification.

A fair reading of Terry v. Ohio, and its reference to the lower court opinion in State v. Terry show that the “frisk” allowable upon a proper showing was ” ‘ . . . only a “frisk” for a dangerous weapon. It by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest. Such a search is controlled by requirements of the Fourth Amendment, and probable cause is essential.’ ” (Terry v. Ohio, supra, 392 U.S. at p. 16, fn. 12 [20 L. Ed. 2d at p. 903, fn. 12.) Our own Supreme Court has unanimously so held. (People v. Lawler (1973) 9 Cal.3d 156, 161, 107 Cal. Rptr. 13 [pat-down search “only” for weapons].) If stare decisis means anything (and it does) and if the word only means only (and it does), the trial court was required to grant this suppression motion as a matter of law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal. Rptr. 321.)

Defendant’s telephone calls from jail were recorded and admissible at trial, and he knew it because of the warning signs. Therefore, no privacy rights were violated, either under federal or state law, including the California Privacy Act. People v. Windham, 145 Cal. App. 4th 881, 51 Cal. Rptr. 3d 884 (1st Dist. December 14, 2006).

Alleged overseizure of material in a child porn investigation failed as a matter of law. Therefore, defense counsel could not have been ineffective for not having challenged it. Also, the claim that the informant who e-mailed child porn received from the defendant to his local police from Turkey was a government agent was rejected. [Besides, there was no “search” or expectation of privacy in what that actor did.] United States v. Steiger, 2006 U.S. Dist. LEXIS 89832 (M.D. Ala. September 7, 2006).*