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Hello, everyone, it's Anthony Bandiero. Here, attorney and senior legal instructor for blue to gold law enforcement training, bringing the roadside chat. All right. This one is a good one. I like this one. This one is Ken cops break a car's window to retrieve a firearm, that the firearm is evidence. Alright, this comes from an officer from California from Southern California. Alright, so let me give you the background here. Okay. I'm reading from a computer call for service. The victim says that she was assaulted with a gun. The suspect pointed the gun at her, didn't shoot her. But pointed at her. We obviously have assault with a deadly weapon. The victim knows the suspect knows where they were likely the person lives and gives it an accurate description of the vehicle, including plate and so forth. The deputies arrive at that address. And what did they see parked on the street? The vehicle? A neighbor is standing outside the cop say, Hey, neighbor, do you know who drives this car? And they're like, yeah, the guy and they described the suspect. And they're like, did you just go into this house? And he's like, yeah, he was he just came home, you know, maybe no more than five minutes ago. Now, the deputies look in the car. And what do they see in plain view? The gun, this guy did not even hide the gun from being observed from plain view. Right? Now the question is, what can we do? Can we go into that car and retrieve that gun? And hear the deputies specific want to know, if they try to open up the door in the door and the car is locked? Right? No doors are open? Can they make a four century into the vehicle? Can they smash the windows? Well, I have your answer my friends. I have your answer. And maybe you're gonna be surprised at this. But the answer is yes, they could. Now before I get in to the legal reasoning, I want you to know that not all states follow the federal motor vehicle exception, right? Mobile conveyance exception. They don't, they don't, not all states are going to have these rules. Some states like Washington, New Mexico, New Jersey, Pennsylvania, are going to have more restrictive rules. But the vast majority of states apply the standard motor vehicle exception that was based off of Carroll in cases after that. Okay. So in order to retrieve that gun, we gotta have four things. If these four things are in place at the exact same time, cops can smash the window. Number one probable cause? Clearly, I think we are slam dunk probable cause that That gun is evidence. Right? That gun is and also we're talking about California here too. It's going to be the guns not gonna be legal anyway, under these conditions. I mean, I don't you know, from my knowledge of California law, you cannot transport that gun like that in California. Now, this was, you know, another state, that's pro gun, you know, maybe different story, but the gun itself is also evidence of a different crime, which is, you know, some kind of illegal transportation firearm, but certainly it's also evidence of the assault with a deadly weapon. So check probable cause, next factor is is the vehicle and curtilage the vehicle cannot be on curtilage under the motor vehicle exception. And let if it is on curtilage, you cannot retrieve the evidence unless you have either consent by some even give it or you have exigency or a warrant here, the cop made it clear to me that the car is on the street in front of the house. That is not curtilage. So we don't have that issue. By the way. That restriction comes from a US Supreme Court case called Collins v. Virginia. So probably cause check. Not uncommon knowledge, check. Third, apparently mobile. Well, we know the vehicle is apparently mobile, it just got there about five minutes ago. So if the vehicle had a drive train hanging on the ground, and you know, it can't be driven, we have more we have we have problems that's not the motor vehicle exception is not the best way to go. But clearly the vehicle was as mobile because it just got driven so check. And then the last one which is is the most important for us is that is the question of the scope of the search cannot exceed what the judge will allow you to do. In other words, you searched the car in the same manner as if you had a search warrant.
Well, if the cop took the time to go get a search warrant, what would the judge allow you to do with the judge allow you to if the car is not open to make a forced entry? Yes. Right. I mean, that's, that's the way that works. And the judge is not going to tell you that the only way you can retrieve that gun is if the car is open. So you do it the same way as if you had a warm, but I want I want to since we're on this topic, how would you do it? If you had a warm? Would you smash the window? Or do you call a locksmith? You know, maybe cops are like, hey, look, I'm going to smash the window. Because I feel like if we're going to wait out there with it for a locksmith, he could have another gun and start fire on us. If you believe that's an option or possibility. You got to do what you got to do. But I'm just letting you know that I think most courts would be more comfortable. If you actually did not damage the, you know, the person's property. Is that a deal? Killer? I just told you it's not you search in the same way as if you had a warrant. So but I know a lot of prosecutors, I know a lot of judges would probably ask you in court just just so I know. Because why didn't you just call a locksmith? Because one of the issues that could come up is was the execution of the search. Reasonable See, searches are reasonable under two conditions. One, they're reasonable at their inception, right? You have to have the probable cause not in college, so forth, and then the method that you search is reasonable. So that is going to be the issue in this case, I believe, if I was a defense attorney, that is certainly what I would go after, as I would say, you know, Your Honor, I'm not trying to argue that the motor vehicle exception does not exist in California. It does. It's the federal standard, but the method of searching was unreasonable. So answer that for me. And let's go from there. Alright. So the takeaway is this. The motor vehicle exception is a very powerful search, it would allow the search, you have to be reasonable in the search, you basically do it just like a judge allow you to do it. If you would like to know why can't get a locksmith, right. And, and so forth. All right. All right. Can since I'm on the topic, one more before you go, just a little bonus. There's another reason, another method of season this gun to it does fall on their community caretaking, which is the case is Katie versus Dombroski, which, basically, it stands for the proposition that a gun in plain view can be a danger to the general public, of if the cops just left the gun there and somebody is walking by the sidewalk, would they break the window and grab that gun potentially and leave? I think the answer is yes. So that's another little backup plan. But let's just focus you know, the main searchers into the motor vehicle exception I think we're going to win as long as the smashing the windows held, be reasonable. Alright, there it is. Guys, before you leave free things Come on, hit that that like button or comment? let YouTube know I'm doing a good job and share with your friends. Hit subscribe. Let's get this up to 10s of 1000s of cops. And finally, share with your friends until next time, keep doing the great job you're doing.
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