Can an incorrect ID/description of a civilian and Police trump the 4th Amendment?

Posted by on February 3, 2018 in #DUIdata | 0 comments

Can an incorrect ID/description of a civilian and Police trump the 4th Amendment?

Can an incorrect ID/description of a civilian and Police trump the 4th Amendment? Here: yes it can.

If Police detain the wrong suspect, but find bad stuff on the wrong suspect, does that violate the 4th Amendment? Well, it depends. But in this case, no it doesn’t offend the 4th.

Here, Police released a “Be on the Lookout” flyer for a Penal Code 288 (lewd act on child) suspect. “The flier described the suspect as ‘WMA, Age: 30, 5’10”, 155 lbs, dark or brown shaggy hair w/beard, tan complexion, black shoes, black socks and a black beanie.’ The flier also contained three color photographs, two of which showed the suspect’s face.”

A bus driver sees the flyer that day (the Court will hold it then must have been fresh in his mind), and tells Police he has a person on his bus matching the flyer.

Searching Officer arrives, has never seen the flyer, but recalls a news video “that the suspect was a white male.” “The bus driver points out Defendant, who is asleep on a seat and Searching Officer wakes Defendant, identifies himself, handcuffs Defendant, and removes him from the bus. Searching Officer has Defendant sit on the bus bench, and finds out Defendant is on parole. So let the searching begin. Winner-winner, Defendant had narcotics on him. “About 10 to 15 minutes after the deputies searched defendant, they received clear photos of the suspect on the flier and determined that defendant was not the person depicted on the flier.”

The Trial Court found the initial search violated the 4th Amendment from the call-in, then handoff form the bus driver: “I think that the descriptors that law enforcement had are far, far, far, far too vague under these circumstances to have initiated a detention. I do think it does alter the equation somewhat that a citizen is saying that’s the person I recognize. But I don’t think the law enforcement officer can then delegate the duty of ascertaining the likeness of a description simply to that.”

The Court of Appeals disagrees and reverses. “Here, in contrast, the evidence presented at the suppression hearing established that defendant matched not only the age, race, and weight of the suspect but also that he was the same height and had the shaggy hair and beard described in the flier.

Defendant argues the bus driver’s information was insufficient to support a detention because it was analogous to an anonymous tip. The Court says nope, because it’s not an anonymous tip (the bus driver was a true citizen informant). “Unlike information provided by an anonymous tip, information from a true citizen informant is considered reliable because a citizen informant ‘can be held responsible if her allegations turn out to be fabricated.’”

See People v. Stanley, decided 11/20/17, and certified 12/12/17, Court of Appeals of California, Sixth District.


About me, San Diego DUI lawyer Eric Ganci:

I am an owner and DUI lawyer in San Diego with my own firm Ganci, Esq., A Professional Corporation.  I am trained in blood testing for drugs and alcohol, trained on breath testing, and trained to train police on field sobriety tests.  I have authored Thomson West Publications regarding DUI science and law, and am a founding member of the DUI Defense Lawyers Association, a national group.  

I am recognized, after completing the required coursework and passing the certification exam, as a Lawyer-Scientist by the American Chemical Society, Chemistry and the Law division.  I have been fortunate to be awarded many other awards, and  you can see my full bio here.

I received my JD from Thomas Jefferson School of Law, my BA in Music Education from Northern Illinois University, and graduated from the Trial Lawyers College in 2013.

I have offices in San Diego and Vista (North County San Diego), and I represent persons arrested for DUI in all counties in San Diego.

Also, per California Rules of Professional Conduct, although I try to simply make them informative and entertaining, some persons may take it as a legal solicitation.  It’s not, and it does not in any way form any kind of attorney-client relationship with whoever reads it.

Eric Ganci, Esq., DUI trial lawyer


Cell: 760-216-4941


Fax: 888-241-5887


Downtown San Diego office:

350 10th Ave, Ste 1000

San Diego CA 92101


North County San Diego office:

950 Vista Village Dr

Vista, CA 92084

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