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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

RUSSELL MCCLOUD,

Defendant.

Case No. 4:17-cr-00025-JD-1 

ORDER RE MOTION TO SUPPRESS

Re: Dkt. No. 21

Defendant Russell McCloud moves to suppress evidence obtained at a traffic stop and 

search of his car. Dkt. No. 21. The Court heard argument on the motion to suppress with the 

defendant present in court. Dkt. No. 33. The facts germane to the motion are not in dispute, and 

McCloud has not requested an evidentiary hearing. Body camera footage of the November 2016 

stop, recordings of the dispatch radio traffic, and a Computer Aided Dispatch log have been made 

available to all parties. See Dkt. Nos. 24-1, 24-2, 24-3. The motion is denied.

BACKGROUND

On the afternoon of November 30, 2016, officers from the Alameda County Sheriff’s 

Office were investigating an armed robbery at 7906 MacArthur Boulevard in Oakland. See 

generally Dkt. Nos. 24-2, 24-3. The officers were in uniform and driving an unmarked car. They 

believed one suspect to be an African-American male with short hair driving a dark BMW. As the 

officers began exiting the driveway at 7906 MacArthur, a black BMW driven by an AfricanAmerican man with a bald head pulled in. The officers checked the BMW’s front license plate 

and found that its registration had expired. The driver reversed out after seeing the officers’ car, 

drove forward, and U-turned on MacArthur without signaling. The officers followed and pulled 

the BMW over for traffic violations. See Cal. Veh. Code § 4000(a) (registration); Cal. Veh. Code 

§ 22107 (turn signaling). 
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The officers approached and asked the driver for identification and a license. A marijuana 

cigarette was in plain view on the center console. The driver identified himself as Russell 

McCloud. McCloud said he did not have a driver’s license on him and that it had been suspended. 

One of the officers did a records check of McCloud by radio. Dispatch advised that McCloud was 

on probation for a violation of California Penal Code Section 29800(a) (unlawful possession of 

firearm), was subject to “S7,” and was on post-release community supervision (“PRCS”). The 

officers knew from experience that S7 referred to a standard condition of probation authorizing 

warrantless searches of McCloud’s vehicle, residence, person, and any other property in his 

control. They also understood that as a person on PRCS, McCloud was subject to a mandatory 

search condition permitting warrantless searches of a person, his residence, and his possessions. 

See Cal. Penal Code Section 3453(f). When the officers asked dispatch about the underlying 

PRCS offense, dispatch responded that that information was not available. At this point, McCloud 

had been detained for approximately four minutes. 

After finishing McCloud’s records check, the officers searched McCloud’s person and car. 

In the trunk of the BMW, they located a brown backpack containing a loaded .40 caliber Glock 27 

handgun. McCloud was indicted in the Northern District of California on one count of felon in 

possession of a firearm and ammunition, 18 U.S. Code Section 922(g)(1). Dkt. No. 1. McCloud 

now moves to suppress the evidence recovered in the November 2016 search, contending that the 

officers’ search of his vehicle was an unlawful prolongation of the traffic stop and that his 

probation search condition did not authorize suspicionless searches. 

DISCUSSION

“[I]n general, ‘the decision to stop an automobile is reasonable where the police have 

probable cause to believe that a traffic violation has occurred.’” United States v. Choudhry, 461 

F.3d 1097, 1100 (9th Cir. 2006) (quoting Whren v. United States, 517 U.S. 806, 810 (1996)). The 

“tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s 

‘mission’ -- to address the traffic violation that warranted the stop and attend to related safety 

concerns. Because addressing the infraction is the purpose of the stop, it may last no longer than 

is necessary to effectuate that purpose. Authority for the seizure thus ends when tasks tied to the 
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traffic infraction are -- or reasonably should have been -- completed.” Rodriguez v. United States, 

135 S. Ct. 1609, 1614 (2015) (internal quotations and citations omitted). In the ordinary course, 

an officer’s “mission” during a traffic stop includes checking the driver’s license, determining 

whether the driver is subject to any outstanding warrants, inspecting the car’s registration and 

proof of insurance, and deciding whether to issue a traffic ticket. Id. at 1615. In contrast, 

measures are “not fairly characterized as part of the officer’s mission” if they lack a “close 

connection to roadway safety” and are instead targeted towards “‘detect[ing] evidence of ordinary 

criminal wrongdoing.’” Id. (quoting Indianapolis v. Edmond, 531 U.S. 32, 40-41 (2000)) 

(modification in original). In Rodriguez, the Supreme Court found that a dog sniff for drugs is not 

an ordinary incident of a traffic stop, and a traffic stop may not be prolonged to conduct a dog 

sniff absent reasonable suspicion of wrongdoing. Id. at 1616. 

Since Rodriguez, the Ninth Circuit has held that an ex-felon registration check, like a dog 

sniff for drugs, is “wholly unrelated to . . . the ‘mission’ of ‘ensuring that vehicles on the road are 

operated safely and responsibly.’” United States v. Evans, 786 F.3d 779, 786 (9th Cir. 2015) 

(quoting Rodriguez, 135 S. Ct. at 1615). An officer may prolong a traffic stop by running an exfelon registration check “if the prolongation itself is supported by independent reasonable 

suspicion. Reasonable suspicion ‘exists when an officer is aware of specific, articulable facts 

which, when considered with objective and reasonable inferences, form a basis for particularized 

suspicion.’” Id. at 788 (quoting United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 

2000) (en banc)). 

McCloud says that the record check fell outside the ordinary scope of a traffic stop. But 

even if that is taken as true, an officer may prolong a traffic stop to seek “evidence of ordinary 

criminal wrongdoing” upon independent reasonable suspicion. Rodriguez, 135 S. Ct. at 1615. 

The motion to suppress does not address whether the officers had independent reasonable 

suspicion to run a records check. The government argues that independent reasonable suspicion 

did support the records check, and McCloud neither filed a reply brief nor responded to that point 

at the hearing on the motion to suppress.
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“The reasonable-suspicion standard is not a particularly high threshold to reach. ‘Although 

. . . a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to 

the level required for probable cause, and it falls considerably short of satisfying a preponderance 

of the evidence standard.’” United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) 

(quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)). The relevant facts as provided by the 

officers’ declarations and supporting audio and video recordings have not been disputed by 

McCloud, and they show that the officers in this case had reasonable suspicion to run a records

check. McCloud and his black BMW matched a description of a suspect in the armed robbery 

case that the officers were investigating. He backed out of the driveway at the robbery site after 

seeing the uniformed police officers, drove away, and then took a U-turn without signaling. The 

officers reasonably viewed that behavior as evasive, since McCloud could simply have backed out

to let the police officers drive out and then turned in after the police officers left. These 

circumstances formed a “particularized and objective basis” for the officers’ suspicions. United 

States v. Rodriguez, 976 F.2d 592, 595-96 (9th Cir. 1992), opinion amended on denial of reh’g, 

997 F.2d 1306 (9th Cir. 1993). 

McCloud also says that the officers’ search of the BMW pursuant to McCloud’s probation 

search condition was unreasonable. McCloud’s probation agreement states that he will “[s]ubmit 

to search and seizure by any . . . law enforcement officer at any time of the day or night with or 

without a search warrant, including: vehicle, residence, person or any other property under your 

control.” Dkt. No. 24-1 at ECF p. 42. The “California Supreme Court ‘has construed a 

warrantless search condition to be tantamount to a suspicionless search condition.’” United States 

v. Miller, No. 4:15-CR-00197-JD-1, 2016 WL 80565, at *2 (N.D. Cal. Jan. 7, 2016) (citing People 

v. Douglas, 240 Cal. App. 4th 855, 864 n.7 (Cal. Ct. App. 2015)), aff’d, 694 F. App’x 609 (9th 

Cir. 2017). It is an open question in our circuit whether officers may conduct a suspicionless 

search pursuant to a suspicionless search condition in a non-violent felon’s probation agreement. 

See United States v. King, 736 F.3d 805, 808 (9th Cir. 2013). In contrast, if “an officer has 

reasonable suspicion that a probationer subject to a search condition is engaged in criminal 

activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the 
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probationer’s significantly diminished privacy interests is reasonable.” United States v. Knights, 

534 U.S. 112, 121 (2001). Where reasonable suspicion of criminal wrongdoing exists, a 

warrantless search pursuant to a probation search condition is constitutionally sound. Id. 

The Court need not reach the open question noted in King, since the undisputed facts show 

that the search of McCloud’s car pursuant to his probation search condition was triggered by

reasonable suspicion of criminal activity. McCloud matched the description of a suspect in the 

robbery at 3906 MacArthur, was driving into the site of the robbery, and apparently tried to evade 

the police officers after spotting them. During the traffic stop, the officers additionally learned 

that McCloud was driving without a license, observed a marijuana cigarette on the console next to 

McCloud, and conducted a records check that revealed McCloud was on probation for illegal 

firearm possession. In light of these factors, the officers’ ensuing search of the car pursuant to 

McCloud’s search condition was reasonable under the Fourth Amendment. Id. at 120-21 

(probationer subject to search condition has “significantly diminished” expectation of privacy, 

while government interest in preventing crime may “justifiably focus on probationers”). It bears 

repeating that McCloud’s motion to suppress is silent on whether the officers had reasonable 

suspicion of wrongdoing. The government’s opposition brief raises that point, but as stated 

McCloud did not file a reply and again did not address this argument at the hearing. 

That is enough to deny suppression, but it is also worth noting that the officers reasonably 

relied on dispatch’s report that McCloud was a parolee subject to a statutory suspicionless search 

condition. Again, this issue was briefed by the government and McCloud did not respond by 

filing a reply brief or by raising any substantive points at the motion hearing. 

Dispatch told the officers that McCloud was on PRCS. PRCS was implemented as part of 

the 2011 Realignment Act addressing public safety and “provides for local post-incarceration 

supervision of less serious offenders by a county department rather than the state parole 

authorities. . . . For each PRCS participant, ‘[t]he person, and his or her residence and possessions, 

shall be subject to search at any time of the day or night, with or without a warrant, by an agent of 

the supervising county agency or by a peace officer.’” Miller, 2016 WL 80565, at *2 (quoting

Cal. Penal Code § 3453(f)). California courts treat “PRCS as comparable to parole rather than 
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probation. . . . [T]he United States Supreme Court and the California Supreme Court have found 

that parole is akin to imprisonment and ‘parolees have fewer expectations of privacy than 

probationers.’ . . . . Suspicionless searches of parolees are lawful so long as they are not conducted 

arbitrarily, capriciously or for harassment.” Id. (quoting Samson v. California, 547 U.S. 843, 850 

(2006) and citing Douglas, 240 Cal. App. 4th at 861). 

Although the officers were mistaken -- McCloud correctly stated during the traffic stop 

that he was not on PRCS -- the record indicates that their reliance on the dispatcher’s report was 

objectively reasonable. “To trigger the exclusionary rule, police conduct must be sufficiently 

deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is 

worth the price paid by the justice system. . . . [Exclusion] serves to deter deliberate, reckless, or 

grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Herring v. 

United States, 555 U.S. 135, 144 (2009). None of the facts before the Court indicate that the 

dispatcher’s error about PRCS was grossly negligent or the result of systemic negligence. Nor 

does McCloud argue that it was unreasonable for the officers to take dispatch’s word over his. 

The officers’ objectively reasonable belief that McCloud was a parolee subject to a suspicionless 

search condition is an alternative sufficient reason to deny the suppression motion. 

CONCLUSION

The motion to suppress is DENIED. 

IT IS SO ORDERED.

Dated: June 15, 2018

JAMES DONATO

United States District Judge