P. v. Chiappetta

Filed 12/7/07 P. v. Chiappetta CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Ashley, Judge.

James H. Dippery, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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After his motion to suppress evidence was denied, defendant Craig Thomas Chiappetta pleaded no contest to a charge of receiving stolen property. He now argues that the denial of his motion to suppress was erroneous. He contends that the police did not have probable cause to search his car in which the stolen property was found. We affirm.

Factual and Procedural Histories

On September 20, 2005, Officer Timothy Redd of the Oakdale Police Department received a report that a stolen truck had been located at a gas station in Oakdale. Redd went to the gas station and spoke with the driver of the stolen truck, a 1988 white Chevrolet S-10 pickup, Shannon Keefe. Keefe told Redd that she had been given the truck by a man she met in a park who had asked if she wanted to buy it and then if she would put gas in it for him. She described the man as Jim, a white male in his 40s with a shaved head, no facial hair, and the words San Jose tattooed on his stomach. Keefe was taken into custody.

Redd contacted the owner of the truck, Louis Longoria, and asked him to come to the gas station and identify it and any missing parts or other property. Longoria arrived and said the trucks chrome rims, body molding, and stereo were missing, and its keys, title certificate, registration card, and a set of tools had been taken from it. Keefe told Redd that the chrome rims were on Jims red Camaro. Another officer heard Keefes description of Jim; it matched a person the officer had stopped in a traffic-related matter. The other officer knew this persons address.

The officers proceeded to the address and found that the building was a duplex. In a driveway shared by the two units were two vehicles. One was a sports car covered with a tarp or car cover. Chrome rims, the license plate, and part of a red body panel were visible. A check of the license plate number showed that the car was defendants Camaro. Redd removed the tarp to make sure the vehicle was completely red and to look for additional evidence of the crime.^[1] Several items of property were visible inside the Camaro through the windows. The second vehicle was a white pickup truck, also registered to defendant. Inside it, visible through the windows, was a piece of vehicle body molding. Longoria, who lived nearby, was summoned to the scene. He identified as his a stereo, a speaker, and some tools in the Camaro.^[2] The chrome rims on the Camaro were not his. An occupant allowed police to enter and search the building, where they found defendant in the garage and arrested him.

The district attorney filed an information charging defendant with receiving stolen property (Pen. Code,  496, subd. (a)). The information also alleged that defendant had three prior convictions qualifying as strikes under the three strikes law ( 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and had served four prior prison terms ( 667.5, subd. (b)).

Defendant filed a motion to suppress all evidence found in the Camaro, arguing that the search of the Camaro violated the Fourth Amendment. The court denied the motion.

On October 27, 2006, defendant entered a plea of no contest to the charge of receiving stolen property and admitted the four prior prison terms and one of the prior strike convictions. The court imposed a 10-year sentence pursuant to a plea agreement.

Discussion

Defendant argues that the court erred in denying his motion to suppress evidence obtained through a warrantless search of his automobile. He concedes that the automobile exception to the warrant requirement (see Maryland v. Dyson (1999) 527 U.S. 465, 466-467; Carroll v. United States (1925) 267 U.S. 132, 153) applies here, but contends that the search was still invalid because it was not supported by probable cause.

Appellate review of the denial of a motion to suppress involves two steps. First, where the superior court sits as a finder of fact, the appellate court must uphold the superior courts express and implied findings if they are supported by substantial evidence and must indulge all inferences in favor of the courts ruling on the suppression motion. Second, the appellate court exercises its independent judgment to measure the facts, as found by the trier, against the constitutional standard of reasonableness. (People v. Holt (1989) 212 Cal.App.3d 1200, 1204.)

Under the Fourth Amendment, the people are guaranteed the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . (U.S. Const., 4th Amend.) A search warrant ordinarily is required, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Ibid.)

There are exceptions to the warrant requirement, one of which is the automobile exception. The ready mobility of an automobile justifies a lesser degree of protection of privacy interests. (Carroll v. United States, supra, 267 U.S. at p. 153.) If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more. (Pennsylvania v. Labron (1996) 518 U.S. 938, 940.) Further, even if a vehicle is actually inoperable, it still may be searched without a warrant if the officer reasonably believes it is operable. (United States v. Hatley (9th Cir. 1994) 15 F.3d 856, 859.) Here, the Camaro was not up on blocks, nor were there missing or flat tires. It was parked in a driveway with ready access to the street. (See ibid.) As we have said, defendant concedes that the automobile exception applies in this case.

The only question, therefore, is whether the search was supported by probable cause. More specifically, was there probable cause to remove the tarp from the Camaro? The stolen property inside the Camaro was in plain view through the windows after the tarp was removed, so we need only determine whether the circumstances presented probable cause to remove the tarp. The probable-cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate and not merely on the subjective good faith of the police officers. (United States v. Ross (1982) 456 U.S. 798, 808.)

Before Officer Redd removed the tarp, he knew several things. He knew Longorias truck had been stolen. A witness, albeit one of dubious credibility, said a person matching defendants description had given her the stolen truck. From Longorias statement, Redd knew several items of property had been removed from the truck. He knew the missing property included chrome rims. The same dubious witness had said these rims were on defendants red Camaro. The covered cars chrome rims were visible below the bottom edge of the tarp. After checking the license plate, Redd knew the covered car was defendants red Camaro. Redd also knew the missing property included vehicle body molding; some vehicle body molding was inside the white pickup parked beside the Camaro. This combination of circumstances provided Redd with ample reason to believe that uncovering the car would reveal additional evidence of the crime.

Defendant argues that Redd acted out of mere investigative curiosity when he uncovered the car and possessed no objective facts to support his decision to uncover it. The facts we have just recited refute these contentions. Redd was, no doubt, curious about whether looking under the tarp would reveal more evidence of defendants crime. He also had probable cause for thinking it would.

Disposition

The judgment is affirmed.

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^*Before Wiseman, Acting P.J., Levy, J., and Gomes, J.

^[1]Redd testified that he also lifted the tarp for officer safety reasons; he said he was concerned that someone could be hiding in the car. Because of our holding that there was probable cause to uncover the car to search for evidence of crime, we need not discuss this additional asserted basis for the search.

^[2]At the preliminary hearing, Officer Redd testified that he did not recall Longoria identifying anything in the white pickup as his. At the suppression hearing, Officer Redd did recall Longoria identifying the vehicle body molding in the white pickup as his.