Filed 1/23/18 P. v. Hughes CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Susan Hughes pled no contest to a single misdemeanor count of possession of a controlled substance (Health & Safety Code, § 11377, subd. (a)), after the trial court denied her motion to suppress evidence of the methamphetamine police found in her makeup bag during a warrantless search of her car. She now appeals, asserting the warrantless search violated the Fourth Amendment. We conclude the search was a lawful search incident to probation, and affirm.[1]

BACKGROUND

We take our facts from the testimony adduced at the suppression hearing, summarizing them in the light most favorable to the lower court’s ruling on the suppression motion, including by drawing all inferences and resolving all factual conflicts in its favor. (See People v. Woods (1999) 21 Cal.4th 668, 673 (Woods).)

On November 17, 2016, Napa police officer Eric Koford was on routine patrol in a marked police car in a crime-ridden area of downtown Napa known to be plagued by illegal drug activity, when he spotted a woman he recognized, Gianna Micheletti, standing outside a building with a backpack next to her. He knew Micheletti from previous police encounters, and believed she was on probation with a warrantless search condition. As soon as Micheletti noticed Officer Koford’s patrol car approaching, she became visibly nervous, grabbed her backpack, hurried over to a nearby parked car and ducked into the front passenger seat. Defendant Hughes was sitting in the driver’s seat. Officer Koford had never seen her before.

Officer Koford pulled up, parked a short distance behind the car, got out of his patrol car and began walking toward the passenger side of the car. As he approached, he saw both women pull a blanket over an object located on the car’s center console between the two seats, as if they were jointly trying to conceal something. Officer Koford asked if everything was okay, and the women replied that it was. He then inquired about Micheletti’s probation status. Micheletti said she thought she was on probation, with a search and seizure condition, and he confirmed that over his radio.

Concerned for his safety, Officer Koford asked the women if they had hidden any weapons under the blanket, and they said they had not. The women then pulled the blanket off the center console to show him, revealing a black makeup bag with the letter “S” on it. He then asked them if there was anything illegal in the car, and they denied that there was. When he asked Micheletti if the makeup bag was hers, she said it was not and defendant Hughes told him it belonged to her. Officer Koford asked the women if they were willing to open the bag to verify it contained nothing illegal but Hughes refused. Although Officer Koford had never seen Micheletti access the makeup bag or put anything in it, which had been hidden from view under the blanket, the suspicious movement underneath the blanket he had observed had made him wonder whether the women had been attempting to conceal something together. He thought it was possible, given Micheletti’s proximity, that she could have stashed something in the makeup bag even though it appeared to belong to defendant Hughes.

Officer Koford then asked defendant Hughes to step out of the car and speak with him away from Micheletti, and she complied. She seemed nervous, with voice quivering and hands shaking, and he asked why. Hughes claimed that she and Micheletti had been planning to make a “deal” to “get money from access cards,” but that Hughes changed her mind after encountering Officer Koford and had decided not to go through with their plan.

He then asked Micheletti to get out of the car too so he could search her, found nothing incriminating on her person or in her backpack, and then asked her about access cards. Micheletti said she had no idea what Officer Koford was talking about and denied that she and defendant Hughes had ever discussed the subject.

Officer Koford then told the women he was going to search those areas of the car that would have been in Micheletti’s “dominion or control,” and Hughes objected. He explained that he was legally entitled to do so, and he then searched all the areas of the passenger compartment that were “within basically an arm’s reach” of the passenger seat where Micheletti had been sitting, including the center console. In the course of doing so, he noticed that the black makeup bag was slightly unzipped, with a small piece of plastic baggie sticking out of it. The visible portion of the baggie had “pull marks” on it that were consistent with drug packaging. He unzipped the makeup bag the rest of the way, and discovered four bags of methamphetamine and a scale with crystal-like residue on it.

Hughes moved to suppress the drugs and drug paraphernalia (see Pen. Code, § 1538.5), and the superior court denied her motion. It ruled the search was constitutional, both as a lawful search incident to probation and under the plain view doctrine. Hughes then entered her plea, and this appeal followed.

DISCUSSION

In reviewing the legality of Officer Koford’s warrantless search, we employ a dual standard of review. We defer to the trial court’s express and implied factual findings if they are supported by substantial evidence, but independently determine their constitutional significance. (See Woods, supra, 21 Cal.4th at pp. 673–674.)

The parties do not dispute the applicable law. When a probationer consents to warrantless searches as a condition of probation, as it is undisputed Micheletti did, police officers may search those areas they reasonably believe the probationer has control over, regardless whether it is exclusive control or joint dominion and control with another person. (See Woods, supra, 21 Cal.4th at p. 681.) “It long has been settled that a consent-based search is valid when consent is given by one person with common or superior authority over the area to be searched; the consent of other interested parties is unnecessary.” (Id. at p. 675.) Only areas under the sole control of a non-probationer are outside the scope of such a search. (See id. at p. 682.)

In People v. Schmitz (2012) 55 Cal.4th 909, our Supreme Court applied these principles in the context of a vehicular search of a parolee, and Schmitz has since been extended to vehicular searches incident to probation. (See People v. Cervantes (2017) 11 Cal.App.5th 860, 866–867, 870–871.) Under the principles articulated in Schmitz, “ ‘a vehicle search based on a passenger’s [probation] status may extend beyond the [probationer]’s person and the seat he or she occupies,’ but is ‘confined to those areas of the passenger compartment where the officer reasonably expects that the [probationer] could have stowed personal belongings or discarded items when aware of police activity. [Citation.] The searchable area includes ‘items of personal property if the officer reasonably believes that the probationer owns the items or has the ability to exert control over them.” (Cervantes, at p. 871, italics added.) In this context, the concept of “control” means only “ ‘mere physical access,’ ” not “ ‘ownership, possession, or authority over the property searched.’ ” (See Schmitz, at p. 928; see also id. at p. 929 [“a passenger’s act of tossing contraband behind him into the backseat would amount to an exercise of ‘control’ over that area”].) An officer’s “reasonable belief” is judged by an objective standard: “ ‘ “would the facts available to the officer at the moment . . . ‘warrant a man of reasonable caution in the [requisite] belief.’ ” ’ ” (Schmitz, at p. 930, fn. 23.) And, in determining the reasonableness of the officer’s actions, we consider the totality of the circumstances. (See Cervantes, at p. 871.) That is to say, whether in the totality of the circumstances an officer could reasonably conclude the probationer had access to the area or property searched. (See Schmitz, at p. 930, fn. 22.)

So, for example, Schmitz upheld a search of, among other things, a pair of shoes in the back seat of a car based on the parolee status of the front seat passenger, even though the record did not reflect who owned them. (See Schmitz, supra, 55 Cal.4th at p. 932.) Schmitz reasoned that, “[r]egardless of actual ownership, it was objectively reasonable for the officer to believe that the parolee was able to reach back to hide contraband inside the shoes.” (Ibid.) The court contrasted a pair of shoes with a ladies’ purse, which the court said “is likely to be more closely monitored by its owner or otherwise secured.” (Ibid.)

Cervantes held that officers were legally entitled to search the unlocked center console of a car, where they discovered methamphetamine, based on the probationer’s proximity to it while sitting in the front passenger seat and her apparent ability to conceal contraband in it upon becoming aware of the police.[2] (Cervantes, 11 Cal.App.5th at pp. 864, 873; see also People v. Ermi (2013) 216 Cal.App.4th 277 [upholding warrantless search of purse belonging to probationer’s girlfriend where officer could reasonably believe probationer had access to it].)

Hughes contends the search conducted here exceeded the scope of a lawful search incident to probation, and that Schmitz is distinguishable, “because it extended beyond what could have reasonably been believed to be in Micheletti’s dominion or control.” The reason, she says, is because under the circumstances it “was not objectively reasonable to believe that Micheletti, who had just gotten into the car, had stowed her property in Hughes’ makeup bag.” We disagree. Like the probationer in Cervantez, Micheletti was seated in the front passenger seat, immediately next to the center console where drugs were found. And, as in Cervantez, the area searched (the makeup bag) was not locked or secured but, on the contrary, it was partially unzipped, making it possible for a probationer to quickly slip something inside it whether or not it actually belonged to her. Indeed, if anything, the surrounding circumstances here made it even more objectively reasonable for Officer Koford to think the probationer could have stashed contraband inside the makeup bag than was true in either Schmitz or Cervantez. He was on patrol in a crime-ridden area known for drugs, and as he approached he observed Micheletti dash to the car in an apparent attempt to evade detection by him. Immediately after that, he saw Micheletti and Hughes pull a blanket over what turned out to be the makeup bag, as if they were trying to hide something together. In these circumstances, it was objectively reasonable for Officer Koford to believe the makeup bag had been under Micheletti’s joint dominion or control, even though it didn’t actually belong to her. It was not only in an area located within her “arm’s reach,” as he testified, but she actually had participated in physically concealing it from police. Accordingly, the search was valid and there was no basis to invalidate the search and seizure of the contraband found there.

DISPOSITION

The judgment is affirmed.

STEWART, J.

We concur.

RICHMAN, Acting P.J.

MILLER, J.