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People v. Pickard

Superior Court of California, Appellate Division, San Diego

June 30, 2017

THE PEOPLE, Plaintiff(s) and Appellant(s),
AUBREE PICKARD, Defendant(s) and Respondent(s).

         APPEAL from the Order granting defendant's Penal Code section 1538.5 motion to suppress the drug screening results entered by the Superior Court, San Diego County, No.: CN358552 Frank L. Birchak, Judge. Following argument on June 22, 2017, this matter was taken under submission.

          Summer Stephan, District Attorney, Lilia Garcia, Deputy District Attorney, for Plaintiff and Appellant.

          Christopher Zander, for Defendant and Respondent.



         On February 19, 2016, the defendant was arrested for driving under the influence of alcohol. When the officer gave the Implied Consent Law admonishment, he told defendant that she'd have to submit to a breath or blood test. He further explained that the breath machine is unable to retain any kind of a sample for retesting. On the other hand, with the blood test, the nurse would draw two small vials of blood -- “[o]ne of those vials goes to the crime lab and gets tested for alcohol….The second vial is held at no cost to you.” (Emphasis added.)[1] Consistent with his field admonishment, the officer testified he told the defendant “that two small vials of blood will be drawn. One goes to the San Diego Country Crime Lab. It gets tested for alcohol and … that report gets added to my report at a later date.” (Emphasis added.) The defendant elected to submit to a blood test. It was stipulated by the parties that the defendant's blood was analyzed for alcohol on February 29, 2016, and was later sent to Bio-Tox for a drug analysis. Bio-Tox received the second vial of defendant's blood on March 30th, and the Bio-Tox report dated April 1, 2016 reflected the positive results of the drug screen. On April 25, 2016, the People filed a complaint charging defendant with driving under the combined influence of alcohol and drugs in violation of Vehicle Code section 23152, subdivision (f).

         After hearing the evidence during the suppression motion, the trial court found that the defendant had consented to the blood test after her arrest for driving under the influence. The trial court denied the motion to suppress the blood alcohol test dated February 29, 2016, but granted the motion to suppress the drug test results dated April 1, 2017 as beyond the scope of the defendant's consent, which was limited to testing the blood sample for alcohol. The People appeal from the order suppressing the drug test results.


         The law on the scope of a suspect's consent has been set forth in People v. Crenshaw (1992) 9 Cal.App.4th 1403:

         “The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective' reasonableness - what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]” [Citation.] Generally, the scope of a warrantless search is denied by its expressed object. [Citation.] A consensual search may not legally exceed the scope of the consent supporting it. [Citation.] Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of the circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court's determination.

         (Id. at p. 1408.)

         The People contend the defendant never limited the scope of her consent and that the second test for drugs did not exceed the scope of the consent.

         …[I]t is the government's burden to prove that a warrantless search was within the scope of the consent given. People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127, states: “The authority to search pursuant to a consent must be limited to the scope of the consent.” …. [¶] Thus, despite initial authorization - whether by warrant, probable cause, or consent - police officers may exceed the boundaries of the power conferred upon them and create illegality for their actions. Limitation may exist due to the specifications of the warrant [citation] or by the constitutional mandate [citation], or, in the case of consensual search, by the mutual understanding and reasonable expectations of the parties.

         (People v. Harwood (1977) 74 Cal.App.3d 460, 466-467; original italics.) The People fail to acknowledge that it was the officer who limited the scope of the search of the blood to the testing of alcohol. Defendant was offered a breath test, which only tests for alcohol content and does not preserve a sample for retesting, or a blood test for alcohol. Under these facts and circumstances, Defendant did not have an affirmative obligation to expressly place limits on the consent when it was the mutual understanding of the defendant and the officer, and their reasonable expectations that the blood was to be tested only for alcohol.

         The People cite to People v. Miller (1999) 69 Cal.App.4th 190, but that case is readily distinguishable. The court in Miller acknowledged that during the course of a consent search, the police do not have to blind themselves to contraband that is in plain view simply because it is not within the scope of their search. Here, the drugs in the defendant's ...

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