Be Careful Who Are Friends With - You Can Be Arrested on a Warrantless Search If Police Are Searching For Your Friend, But Find Reason to Arrest You

Our office often receives phone calls from recently arrested folks who believe their constitutional rights have been violated. There are many contexts of this happening, but one common fact pattern is when police conduct an unannounced probation or parole search (often called a raid).

Our client often is present and arrested for some violation (for example possession of drugs or unlawful possession of a firearm) and protests that since he or she was not on probation or parole, the "fruits" of the arrest should be suppressed (inadmissible as evidence). The client is often outraged, commenting, "the police just ran in, arrested me and the guy they were looking for was not even there. He moved out months ago."

This seemingly exact scenario played out recently in Riverside. Riverside Police Detective Kevin Townsend was trying to find probationer George Rousell. The exact reason why was never fully known, although it was suspected that he was involved in new criminal activity. Townsend researched the billing addresses on certain utility accounts and telephone accounts. This information led him to a particular apartment. Townsend expected to find Rousell.

With several other police officers alongside him, Townsend went to the Riverside apartment and knocked on the door. No one answered. After several more attempts to reach the occupants, Townsend and his fellow officers broke down the door.

Inside, they found about five people and ordered they sit down. Police then conducted a quick security sweep of the apartment. One person present in the apartment was Kima Downey, who was a felon. Police asked for Rousell and the occupants said he moved out several months earlier. While conducting their sweep, however, police found a loaded handgun and ammunition. This gun was found in the kitchen.

Police also found a picture of Downey holding the same handgun. Police therefore arrested Downey, charging him as a felon in possession of a firearm and unlawful possession of ammunition.

Police therefore arrested Downey, charging him as a felon in possession of a firearm and unlawful possession of ammunition.

Once the case was filed, Downey moved under Penal Code 1538.5 to suppress the items seized in the search. This was her attempt to have the judge exclude such evidence, which would have the effect of taking away all the prosecution's evidence. If such a motion were granted, the case would most likely be dismissed.

The trial court denied the motion, finding Detective Townsend had a good faith, reasonable and objective belief that Rousell was living in apartment, although his name was not on the lease. The trial court pointed to the utility bills from the apartment and the phone bills traced to the apartment address, which the court termed "substantial evidence."

The trial court also explained that the apartment manager said there were a lot of people coming and going to and from the apartment at all hours. The property manager said Rousell might be living there, but he was not certain he was at the time.

Downey argued that the officers needed probable cause to believe Rousell was inside the apartment before even entering the apartment. The court rejected this standard.

On appeal, the Fourth Appellate District, Division Two, affirmed the trial court's ruling. The decision was issued on Monday, August 22, 2011 (2011 DJDAR 12583, People v. Kima Rashan Downey).

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