Opinion
Case No. 21-cr-00014-RS-1
2021-07-01
UNITED STATES of America, Plaintiff, v. Wendell Jennings RAPADA, Defendant.
Jason Kleinwaks, Assistant US Attorney, United States Attorney's Office, San Francisco, CA, for Plaintiff. Geoffrey Hansen, Acting Federal Public Defender, Northern District of California, Daniel P. Blank, Senior Litigator, Steven J. Koeninger, Assistant Federal Public Defender, Federal Public Defender's Office, San Francisco, CA, for Defendant.
Jason Kleinwaks, Assistant US Attorney, United States Attorney's Office, San Francisco, CA, for Plaintiff.
Geoffrey Hansen, Acting Federal Public Defender, Northern District of California, Daniel P. Blank, Senior Litigator, Steven J. Koeninger, Assistant Federal Public Defender, Federal Public Defender's Office, San Francisco, CA, for Defendant.
ORDER GRANTING MOTION TO SUPPRESS
RICHARD SEEBORG, Chief United States District Judge
I. INTRODUCTION
Wendell Rapada moves to suppress all evidence produced by a warrantless search of his duffel bag. Discarding the search incident to arrest rationale first offered in support of the search, the government argues (i) that the evidence was discovered during an on-the-scene inventory search, conducted pursuant to the arresting officer's preliminary determination to detain Rapada on mental health grounds, and (ii) that the evidence inevitably would have been discovered during a more traditional, in-station inventory search following Rapada's arrest. The record, however, is devoid of facts corroborating these contentions, and there is no indication an evidentiary hearing would cure this deficiency. The motion is granted.
II. BACKGROUND
A. Circumstances of the Search
Around 2:06 AM on July 1, 2020, the Daly City Police Department ("DCPD") received a call about a loud, possibly violent altercation occurring in unit 225 of a local apartment complex. While officers were still en route to the scene, DCPD received a second call, from the defendant's wife, Melissa Rapada ("Mrs. Rapada"). Mrs. Rapada reported that her husband had just assaulted his elderly parents. In her words, Rapada was "not like himself at all," and had been toggling between acts of aggression ("punch[ing] ... and [ ] choking" his mother) and odder, potentially delusional behavior ("growling and saying [t]he Our Father"). Mrs. Rapada advised that while the assault had occurred in her and Rapada's apartment (unit 225), her in-laws had separated from their son and were currently with her in unit 109. When asked by dispatch whether her in-laws needed medical attention, Mrs. Rapada replied "yes, let's get an ambulance in, please."
Unit 109 is the residence of Mrs. Rapada's brother.
Around 2:14 AM, DCPD Officers Lajoie and Brenes arrived at the apartment complex, where they found Rapada pacing in the courtyard with a black duffel bag. Rapada confirmed he had been in an altercation with his parents, but—speaking quickly and erratically—insisted he could not discuss the incident due to his extreme thirst. Around 2:15 AM, Officer Lizana arrived in the courtyard, prompting Officer Brenes to leave her colleagues with Rapada and go check on Mrs. Rapada and the in-laws in unit 109. After sitting Rapada down on a stairway, Officers Lajoie and Lizana spent approximately ten minutes questioning him. During this period, Rapada shared that he had attempted an "exorcism" on his parents. At Officer Lajoie's request, Rapada produced a California identification card from his duffel bag.
The parties disagree over the sequence of ensuing events. Rapada—working from Officer Lajoie's incident report ("Lajoie Report"), authored shortly after Rapada's arrest—claims that after producing his identification:
Body-cam footage is unavailable in this case.
(i) Rapada was placed in handcuffs and moved from the stairway to the back of Officer Lizana's squad car, where he remained "without his duffel bag";
(ii) Officer Lajoie spoke over the phone with Officer Brenes, who relayed, per Mrs. Rapada and Rapada's parents, that Rapada had "pushed" and "held down" his parents in the bathroom of 225; that Rapada's parents did not want to press charges; and that Rapada's parents believed their son was in the grips of a mental health episode, rather than on drugs;
(iii) Officer Lajoie ran a database check, which indicated that, while Rapada had prior drug convictions, he had not previously been placed on a "5150 W&I mental health hold" in San Mateo; and
California Welfare & Institutions Code § 5150 permits certain officials, including police officers, to take an individual "into custody for a period of up to 72 hours" when the individual's mental health status presents a danger "to others, or to himself or herself[.]" Cal. Wel. & Inst. Code § 5150.
(iv) Officer Lajoie again contacted Officer Brenes, who provided further detail of Rapada's alleged behavior in unit 225 (including that he had caused damage to his mother's head and his father's knee).
Meanwhile, the government, drawing from a DCPD dispatch log, states:
(i) Officer Lajoie ran the database check;
(ii) Officer Lajoie reported that Rapada had been handcuffed and moved to Officer Lizana's squad car; and
(iii) Officer Lajoie spoke over the phone with Officer Brenes.
While the dispatch log confirms this portion of the government's timeline (i.e. , a § 5150 check, followed by a detainment report), they do not resolve the question of when Rapada was placed in the squad car.
As for the location of the duffel bag during all this, the government states that Officer Lajoie "picked up Rapada's duffel bag and carried it" while escorting Rapada to Officer Lizana's vehicle. Rapada's narrative omits the bag's whereabouts in this period, noting only that it was not placed with Rapada in the squad car.
Compare Dkt. 34 at 3-5, with Dkt. 36 at 4-5. This period, whatever its precise content and chronology, ended around 2:50 AM, with Officer Lajoie's decision to search Rapada's duffel bag in the back of the ambulance that had arrived a half-hour prior. The duffel contained an M80 firework, a loaded, unserialized 9mm handgun with a large-capacity magazine, and 85 rounds of ammunition.
At some point during or immediately after the search, Officer Lajoie was joined by Officer Brenes, who shared with him her conclusion that Rapada likely had committed the crimes of false imprisonment and elder abuse. Around 3:03 AM, Officer Lizana transported Rapada to the DCPD station. Around 3:10 AM, Mrs. Rapada consented to a search of unit 225. Officer Lajoie—together with two additional officers, Shoopman and Wagnon—proceeded to search that apartment, where he found a large, locked safe. The search concluded, and the officers, after returning Rapada's (partially-emptied) duffel bag to Mrs. Rapada, left the scene. See Dkt. 40-4 at 3. Officer Lajoie returned to the DCPD station, where he interviewed Rapada.
From there, Rapada eventually was taken to the San Mateo County Jail and booked on charges including elder abuse, felon in possession of a firearm, possession of an illegal explosive, and false imprisonment.
B. Explanations for the Search
1. Lajoie Report (July 1, 2020)
After interviewing Rapada, Officer Lajoie wrote an incident report. See generally Dkt. 35-1. It recounts Officer Lajoie "search[ing] Wendell Rapada's duffel bag ... incident to arrest[.]" Id. at 8.
Of particular consequence, the Lajoie Report takes care to elaborate on why Officer Lajoie elected to place Rapada under arrest—instead of on a § 5150 mental health hold. It explains that, after initially being unable to determine whether Rapada was "suffering from a mental health break down or under the influence of a controlled substance," Officer Lajoie deposited a handcuffed Rapada in Officer Lizana's squad car for officer safety. Id. at 7. It then describes Officer Lajoie conducting a database check; deciding—based off the "known facts about Wendell Rapada," including his "not [having] be[en] placed on a § 5150 hold previously , [having been] arrested multiple times for drug offenses, and ... assaulting his parents"—that "Wendell Rapada was now being investigated for the assault and being under the influence of drugs "; "placing Rapada under arrest for elder abuse and false imprisonment"; and conducting a search of Rapada's duffel bag. Dkt. 35-1 at 8.
Regarding the ambulance, the Lajoie Report observes that it "was called to the apartment to check on Virginia Rapada and Warlito Rapada"—that is, Rapada's parents. Id. at 7. This assertion comports with Mrs. Rapada's plea to dispatchers that someone "get an ambulance in" for her in-laws.
2. Wagnon Search Warrant Affidavit (July 2, 2020)
On July 2, 2020, Officer Wagnon, on the basis of an affidavit comprised of "information ... relayed to [him]" by Officer Lajoie and other "official law enforcement channels," obtained a warrant to search Rapada's safe. See Dkt. 40-1 at 9. Unlike the Lajoie Report, Wagnon's affidavit depicts Officer Lajoie affirmatively deciding to detain Rapada on a § 5150 mental health hold—and conducting the duffel bag search pursuant to that decision—before ultimately opting to change course and place Rapada under criminal arrest. See generally id. at 11.
Specifically, Officer Wagnon's affidavit states that after initial contact with Rapada, "Officer Lajoie requested an ambulance for Rapada , to be evaluated for 5150 W&I danger to self and others, while he continued to investigate other crimes Wendell Rapada may have committed." Id. (emphasis added). Then, "[u]pon the [a]mbulance[’s] arrival, Officer Lajoie conducted a search of Rapada's black duffel bag, prior to providing it to the [ambulance] staff for their safety," in keeping with "standard protocol when placing a person on a 5150 W&I hold." Id. Following his search, Officer Lajoie "elected to place ... Rapada under arrest for possession of the firearm." Id.
3. ATF Report (August 19-20, 2020)
Personnel from the Bureau of Alcohol, Tobacco, Firearms and Explosives and the United States Attorney's Office reviewed this matter with Officer Wagnon on August 19, 2020, and with Officer Lajoie on August 20, 2020. See generally Dkt. 37-5. The resulting report ("ATF Report") provides, in pertinent part:
Off. Wagnon stated that ... [d]ue to Rapada's demeanor and actions, a request was made for WIC 5150 ... [e]valuation and [t]reatment, due to a danger to self and to others. A search of Rapada's black duffel bag was conducted prior to transferring the bag to medical personnel custody. This search is standard protocol for WIC 5150 for the safety of medical personnel.
...
Off. Lajoie stated [that] ... as law enforcement personnel were conducting their investigation, medical personnel w[ere] requested for WIC 5150 for danger to self for Rapada. As is standard protocol, a search of the black duffel bag was initiated for medical personnel safety. As Off. Lajoie conducted his search of the duffel bag, law enforcement personnel updated [him] of the ongoing investigation. At this time, with updated information, it was determined that Rapada was no longer being placed on WIC 5150 and [was instead] being placed under arrest for elder abuse and false imprisonment. The completion of the search ... was conducted [as a] search incident to arrest.
Dkt. 37-5 at 2-3.
4. Lajoie Declaration (May 24, 2021)
Most recently, on May 24, 2021, Officer Lajoie submitted a declaration ("Lajoie Declaration") in support of the government's opposition to the instant motion. See generally Dkt. 37-3. This document is noteworthy in four respects. First, it recasts Officer Lajoie's on-the-scene mental process to conform with Officer Wagnon's search warrant affidavit and the ATF Report. Id. at 3-5. Second, it characterizes the Lajoie Report's divergent account of that process as "inaccurate and a mistake" on Officer Lajoie's part. Id. at 5. Third, it notes that "it is standard practice to provide a ‘detainment advisement’ " prior to a § 5150 transport, but does not state that Officer Lajoie provided Rapada with any such advisement. Id. at 4. Finally, it omits mention of when the ambulance was called, or for whom. See generally id.
III. DISCUSSION
The Fourth Amendment creates a "basic rule that searches outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant , 556 U.S. 332, 337, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (internal quotation marks and citation omitted). "Any exception to the Fourth Amendment warrant requirement must be proven by a preponderance of the evidence, and this burden is upon the government." United States v. Linn , 880 F.2d 209, 214 (9th Cir. 1989) (citations omitted), abrogated on other grounds by Florida v. White , 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999) ; see also United States v. Cervantes , 703 F.3d 1135, 1141 (9th Cir. 2012) (‘[T]he government bears the burden of showing that a warrantless search or seizure falls within an exception to the Fourth Amendment's warrant requirement.") (citation omitted). For each of the three warrant requirement exceptions at issue here, the government falls short of meeting its burden.
A. Search Incident to Arrest
The duffel bag was not within Rapada's actual or prospective reach while it was searched. Accordingly, the government tacitly concedes the search incident to arrest exception does not apply.
B. Inventory Search Pursuant to § 5150
The government argues that § 5150 searches are equivalent to inventory searches in that they further "the range of governmental interests that support the legality of inventory searches[.]" See Dkt. 36 at 13 (internal quotation marks and citation omitted). As an initial matter, it bears noting that the government provides no authority endorsing this theory—there is, for instance, no citation to a case holding § 5150 warrantless searches constitutional under the inventory search exception. Even so, taking the argument at face value, it suffers from a more fundamental defect: the search of Rapada's bag does not hold up to this exception's governing standard.
"To be valid, an inventory search must conform to a standardized and established local procedure, and must be motivated by a concern to inventory the items rather than to search for other incriminating evidence." United States v. Bowhay , 992 F.2d 229, 230 (9th Cir. 1993) (internal quotation marks, bracketing, and citation omitted); see also United States v. Johnson , 889 F.3d 1120, 1125 (9th Cir. 2018) (observing that "administrative searches," including inventory searches, present "an exception to th[e] general rule" that officer motivation is irrelevant in a Fourth Amendment reasonableness inquiry; in the administrative search context, "actual motivations do matter") (emphasis in original) (internal quotation marks and citations omitted). Here, the government provides materials accurately outlining the "standardized and established local procedure" by which DCPD officers are expected to conduct § 5150 searches. Bowhay , 992 F.2d at 230. These materials have the ironic effect of throwing Officer Lajoie's procedural missteps into sharp relief.
Before the execution of a § 5150 transport, it is DCPD policy "to provide a ‘detainment advisement’ ... inform[ing] the individual of the purpose of the 5150 hold and that any personal items to be brought with him will require [the detaining officer's] approval." Dkt. 37-3 at 3. This appears to be in step with the advisement requirements of § 5150 itself: "Each person, at the time he or she is first taken into custody under this section, shall be provided ... information" including the "name" and "agency" of the detaining official, the fact that the person is "not under criminal arrest, but [is being] taken ... for an examination by mental health professionals," and the name of the destination mental health facility. See Cal. Wel. & Inst. Code § 5150(g)(1) (emphasis added). Moreover, as DCPD Detective Soyango—who also submitted an affidavit in support of the government's opposition, on the sole topic of DCPD search protocols—explains:
Per standard procedure, DCPD officers allow patients being placed on a 5150 hold to bring certain items of their property with them. Officers commonly advise the patients that the property they elect to take with them will be searched to ensure the safety of the medical personnel transporting them and hospital personnel. If a patient does not consent to a search of the property that they wish to take with them, it is protocol for officers to refuse to allow their items to be transported for safety concerns. If such property cannot be left safely behind (i.e. in a secure area or in the custody of a trusted friend or family member of the patient ), it should be booked into the DCPD property room ....
Dkt. 37-4 at 4 (emphasis added). All told, then, both California law and DCPD policy mandate substantial disclosures be made to § 5150 subjects, and DCPD policy additionally requires officers to either obtain consent for a § 5150 property search or, if possible, entrust that property to "the custody of a trusted friend or family member[.]"
The record supplies no indication that Officer Lajoie satisfied these requirements. At no point was Rapada advised he was being placed on a § 5150 hold, or of the purpose such a hold serves; at no point was he provided with the name of the mental health facility to which he would be taken, or the fact that he was "not under criminal arrest"; and at no point did anyone seek or receive his consent for a search of the duffel bag, let alone offer to leave the bag in the custody of his nearby wife, with whom on-the-scene officers were in contemporaneous contact. This (undisputed) failure by Officer Lajoie "to conform to ... standardized and established local procedure" is exacerbated by the question—relevant in the inventory search context, see Johnson , 889 F.3d at 1125 —of motivation. In short, even supposing a § 5150 warrantless search theoretically can fit into the inventory search exception, the search of Rapada's bag cannot.
It is difficult to write off entire swaths of the Lajoie Report—a cogent, temporally-proximate narrative of events leading up to a search incident to arrest—as mere scrivener's errors. Between accepting the government's invitation to do so and crediting Rapada's assertion that the motivation for Officer Lajoie's search was (like the Lajoie Report states) criminal investigation, the latter plainly is more compelling.
C. Inevitable Discovery
The government alternatively argues that "[e]ven if ... the search of the duffel bag was unlawful, the evidence obtained from the search should not be suppressed because it would have inevitably been discovered pursuant to an inventory search of the bag." Dkt. 36 at 17. The problem with this argument is that it goes unattended by any facts—much less a preponderance thereof—that the bag invariably would have traveled with Rapada to the DCPD station.
Confusingly, in pressing this point, the government intersperses speculation that the bag inevitably would have been subject to a separate "custodial search" as well. See, e.g. , Dkt. 36 at 16 ("Rapada and his bag would have been subject to a custodial or inventory search (or both) under DCPD policy[.]"). Because the concept of a "custodial" search is—judging from Detective Soyango's declaration—interchangeable with the concept of a search incident to arrest, this proposition does not seem especially reliable. See Dkt. 37-4 ("A custodial search or search incident to arrest should generally be conducted upon or as soon as practical after detaining or placing an individual in handcuffs.")
"[T]he Supreme Court [has] held that speculation on the inevitability of legal discovery of evidence is constrained by ‘demonstrated historical facts capable of ready verification or impeachment.’ " United States v. Young , 573 F.3d 711, 722 (9th Cir. 2009) (quoting Nix v. Williams , 467 U.S. 431, 444-45 n.5, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) ). In its papers, the government establishes DCPD's practice of inventorying an arrestee's property "upon entry to ... DCPD facilities," but does not identify any practice dictating what types of arrestee property necessarily make it into DCPD facilities. Instead, apparently insinuating that an arrestee's bag always makes it to the precinct, the government points to a single case, United States v. Andrade , 784 F.2d 1431 (9th Cir. 1986). There, the Ninth Circuit approved the search of a defendant's bag—conducted roughly one hour after his arrest outside a hotel—because the bag "would have been inevitably discovered through a routine inventory search." Andrade , 784 F.2d at 1433.
Setting aside Andrade ’s sparse explanatory text, this tack fails to account for obvious factual distinctions between that case and this one. Whereas the Andrade defendant was apprehended outside a hotel, Rapada was found outside his residence, with his wife and parents nearby. Compare id. at 1432, with supra Part II.A. For purposes of the inventory exception's animating concerns (officer safety and property accountability), it therefore seems highly plausible, if not likely, that Rapada's bag would have been left with any one of his numerous on-the-scene family members. This possibility looms especially large given that the duffel, after being partially emptied, was in fact left with Mrs. Rapada. See Dkt. 40-4 at 3. Absent more "historical facts" from the government going to how the bag would have been handled if Officer Lajoie had not conducted his search, the inevitable discovery doctrine does not apply. See Nix , 467 U.S. at 444 n.5, 104 S.Ct. 2501.
IV. CONCLUSION
The circumstances surrounding the search of Rapada's duffel bag do not fall within any recognized exception to the Fourth Amendment's warrant requirement. Nor has the government identified facts that, if ascertained via an evidentiary hearing, would disturb this result. Rapada's motion is therefore granted; the fruits of the contested search may not be used against him in these proceedings. A Status Conference will be held in this matter on Tuesday, July 20, 2021.