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United States v. Hernandez, No. CR 08-0730 WHA (N.D. Calif. 1-6-2011)

Motion to Suppress Granted -- San Francisco police officers observed three men whom they believed to be members of the MS-13 gang standing in front of a restaurant. A no-loitering sign was posted in the restaurant window. The officers watched the men for a few minutes, but observed no threatening or gang-related behavior. The officers approached the men to advise them about the no-loitering policy, and despite the lack of any threatening behavior, conducted a pat-down search of each one.

During the frisk, a kitchen knife was discovered in the pocket of the defendant, and he was arrested for carrying a concealed weapon. Police also seized a photo, camera, micro-card adapter, and two cell-phones from the defendant. At the police station, officers reviewed the contents of both phones. Based in part on the information found in the cell phones, an application was filed for a search warrant for the defendant's home, where additional evidence was located. Defendant filed a motion to suppress, arguing that the warrantless search was unlawful. The District Court agreed with defendant that there was no reasonable suspicion that defendant was engaged in criminal activity or was about to commit a crime. The police officer argued that the young men were loitering, but the court noted that the ordinance applies only to private property, not a public sidewalk. The court also noted that the officer who frisked defendant had no reason to believe that the defendant posed any specific threat to the officer or his fellow patrolmen. Since there was no reasonable basis for the stop and frisk, all evidence seized from defendant and subsequently from his home was suppressed. The court specifically rejected application of the two most common exceptions to the exclusionary rule, the good-faith test under Leon and the inevitable discovery doctrine. Leon doesn't apply, the court said, when a warrant is obtained "on the basis of unlawfully seized evidence." Similarly, the court concluded that further discovery of the contents of the phones and defendant's home was not "inevitable" because the government failed to show what probable cause would have led to the discovery. Defendant's motion to suppress was granted.