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Name: People v. Bautista
Case #: H024442
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/17/2004
Subsequent History: Rev. den. 4/14/04

The use of military personnel to obtain evidence supporting a search warrant does not violate the Fourth Amendment or the Posse Comitatus Act. The Posse Comitatus Act (18 U.S.C. §1385) prohibits civilian law enforcement from using “any part of” the Army or Air Force to execute civilian laws. Here, federal DEA officers worked with an army sergeant and his narcotics detection dog in conducting an investigation that led to the issuance of a search warrant at a storage locker. On appeal, the defendants claimed that the dog’s alert to the presence of drugs in the locker constituted direct involvement by the military in civilian law enforcement. The Court of Appeal disagreed, holding that the dog’s alert and his handler’s communication of that alert constituted a “tip,” and did not violate the Posse Comitatus Act. In a related habeas corpus petition, one defendant challenged his plea on the grounds that he received ineffective assistance of counsel when his attorney failed to fully advise him of the immigration consequences of a guilty plea to the charges in this case. Finding that the defendant had made a persuasive case that he was not advised of these consequences and that he was prejudiced by the nonadvisement, the Court of Appeal remanded the matter to the trial court for a factual hearing before a referee.