holding that custodial arrest for a minor infraction to be unlawful under California law, that the unlawful arrest was unreasonable and therefore unlawful under the Fourth Amendment, that the search incident to the arrest was not therefore exempt from the warrant requirement of the Fourth Amendment, and that the evidence from the search was unlawfully obtained and should have been suppressed
How later courts described this case
- holding that custodial arrest for a minor infraction to be unlawful under California law, that the unlawful arrest was unreasonable and therefore unlawful under the Fourth Amendment, that the search incident to the arrest was not therefore exempt from the warrant requirement of the Fourth Amendment, and that the evidence from the search was unlawfully obtained and should have been suppressed
- holding arrest of defendants for selling hot corn-on-the-cob from shopping cart without required license violative of both California law and Fourth Amendment and therefore suppressing evidence obtained from search conducted on basis of unlawftd arrests
- stating that the custodial arrest was not authorized and "[a]bsent some other basis justifying the search, the evidence seized from appellants was unlawfully obtained, and should have been suppressed"
- stating that the custodial arrest was not authorized and "[ajbsent some other basis justifying the search, the evidence seized from appellants was unlawfully obtained, and should have been suppressed"
Written by the judges who cited it.
The opinion
FERNANDEZ, Circuit Judge,
concurring:
I concur in the opinion, but write separately because I have misgivings about the condition in which we now leave the law.
I concur because it is eminently sensible to hold that a search incident to an illegal arrest cannot stand. I have misgivings because that produces some rather strange legal results.
We know that the legality of a search does not depend “on the law of the particular State in which the search occurs.” California v. Greenwood, 486 U.S. 35, 43 , 108 S.Ct. 1625, 1630 , 100 L.Ed.2d 30 (1988). It is a question of federal constitutional law, even if the state gives greater protection.
We also know that the legality of an arrest does not depend upon the law of the particular state where the arrest occurs. That, too, is a question of federal constitutional law, even if the state gives greater protection. Barry v. Fowler, 902 F.2d 770, 773 (9th Cir.1990).
Here, however, we hold that the legality of a search following an arrest does depend on the law of the state where the arrest and search occur. It seems strange to say that can be so. More than that, it creates a curious trap for law enforcement officers.
For example, consider the officer in Barry . Under that decision, the officer violated no federal constitutional rule when he arrested Barry. Thus, he could not be sued for a civil rights violation. Had he then searched her, however, we now hold that he would have violated her constitutional rights and could have been sued. So, I suppose, a booking search or inventory search — or, as here, a search for contraband — would have been actionable even though the arrest was not. Of course, an officer who is plainly violating state law is hardly beatific and may have little call on our sympathy.
It might be that the difficulty is not with the logic of our opinion in this case. Perhaps it is either Barry or Greenwood that has the flaw. Still and all, there is little reason to add more gloom to the gloomy constitutional vista we have created. The decision here is a shaft of cleansing light. Thus, I join it.