P. v. Somerville

Filed 6/5/07 P. v. Somerville CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Judson W. Morris, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

________________

After the trial court denied appellants motion to suppress evidence under Penal Code section 1538.5,[1]appellant pleaded nolo contendere to possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 1) and possession of ammunition ( 12316, subd. (b)(1)) (count 2). Appellant also admitted two prior strike convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i).

The trial court granted appellants Romero^[2] motion and struck the prior conviction allegations. The court sentenced appellant to state prison for the low term of 16 months in count 1 and a concurrent term of 16 months in count 2.

Appellant appeals on the ground that the arresting officer exceeded the scope of appellants consent when he searched the trunk of appellants car and opened a closed shoe box lying in the trunk.

FACTS

I. Prosecution Evidence

At the hearing on appellants motion to suppress, Officer Laurence Hill, a police officer for the City of Burbank, testified that he stopped appellant for speeding on February 19, 2006, at approximately 11:00 a.m. Officer Hill stated that he first noticed appellants vehicle when it pulled up alongside the patrol car. Officer Hill was in the No. 4 lane and appellant was in the No. 3 lane. Appellant accelerated to approximately 75 to 78 miles an hour. Officer Hill eventually moved directly behind appellant, but first he paced appellant as appellant moved into the No. 2 lane and then the No. 1 lane. Officer Hill directed appellant to exit the freeway, and appellant complied.

When Officer Hill asked appellant, the sole occupant of the car, for identification, appellant replied that he did not have any with him. Appellant told Officer Hill that the car was a rental. Appellant showed Officer Hill some paperwork for a rental vehicle that did not match the vehicle he was driving. Officer Hill put in a request for another police unit and ordered appellant to step out of the vehicle and onto the curb. Appellant gave Officer Hill his drivers license number. Officer Hill verified that the license number belonged to an Earnest Somerville, Jr., and that there were no wants or warrants on this person. Officer Hill told appellant he would be writing a ticket and indicated he would possibly let appellant go. Appellant was not in custody and was not handcuffed.

When a sergeant arrived, Officer Hill asked appellant for permission to search the vehicle. According to Officer Hill, [a]fter receiving consent to search the vehicle, he looked inside the glove box. Officer Hill stated that his words were: Can I search the vehicle for drivers license and paperwork on the car? Appellant replied, Go ahead. Inside the glove box, Officer Hill found the correct rental agreement and then continued to search the car. Officer Hill stated that it was not his regular practice to trust the word of an individual who does not have a license but provides a name and drivers license number. He did not know if the name on the rental agreement and the name that corresponded to the drivers license number were truly him or not. Therefore, Officer Hill continued to search the car to see if the appropriate identification was actually within the vehicle after receiving consent to search the entire vehicle. Inside the trunk, Officer Hill found a box containing a loaded firearm, a large amount of cash, and several receipts for different rental vehicles.

II. Defense Evidence

Appellant took the stand and testified that he was driving in the No. 4 lane when he saw the police vehicle approaching from the onramp to his right. Appellant pulled over one lane to his left and the police car did as well. Appellant moved to the next lane and the police car did also. Finally, appellant moved to the No. 1 lane and the police car moved behind him. The officer was driving a car length behind appellant, who was traveling at 60 to 62 miles an hour. The officer turned on his lights and appellant responded by pulling over toward the shoulder. Using a loudspeaker, the officer told appellant to exit the freeway, and appellant complied.

When appellant stopped, Officer Hill asked him for his drivers license, registration, and insurance. Appellant explained that he did not have his drivers license with him but he had a rental agreement for the car. Officer Hill asked to see the rental agreement, and appellant gave it to him. When Officer Hill told appellant that the vehicle described on the agreement did not match the vehicle he was driving, appellant said that he rented vehicles frequently and had mistakenly given the officer the wrong agreement. Officer Hill ordered appellant out of the car and told him to go to the back of the car. Appellant gave Officer Hill his drivers license number, and Officer Hill checked the number using a communication device. Appellant overheard that the license number matched his name and that it was not currently suspended.

Officer Hill then told appellant that he was not going to write a ticket but was going to let him go. No other officer was there at the time. Officer Hill never asked appellant for permission to search the car. Appellant saw Officer Hill look inside the glove box. A sergeant arrived and began conversing with appellant about the cost of the vehicle he was driving. During this time, Officer Hill was searching the vehicle. Appellant saw the trunk pop open, and appellant asked the sergeant why the other officer was searching his vehicle like this. Appellant at no time gave consent for the search.

On cross-examination appellant acknowledged convictions in 1987 for robbery and kidnapping in Florida for which he received a four-year sentence. He admitted having suffered other felony convictions but did not remember how many. He stated that he changed from the No. 4 lane to the No. 3 lane to avoid a collision with the officers merging vehicle. He admitted he kept changing lanes, but he did so because he believed the police car was following too closely and that the officer was focusing on him. Appellant said he had multiple rental agreements in the glove box because he had to clean out his rental cars when he returned them. He just moved everything to a new rented vehicle. He was not aware that he had so many rental agreements in the car at that time.

DISCUSSION

I. Argument

According to appellant, Officer Hill exceeded the scope of the search to which he consented when the officer opened the trunk of appellants rental vehicle. Appellant asserts that he replied, Go ahead only within the context of Officer Hill telling him that he was going to have to retrieve the correct rental agreement from the car. Therefore, appellant did not consent to a general search of the vehicle. Instead, he consented only to a search with the specific purpose of retrieving the correct rental agreement. Opening the trunk was unnecessary because the officer had already found the rental agreement. Moreover, the car trunk is not a place one would normally expect to find a vehicle registration or rental agreement. Therefore, by exceeding the scope of his authority to search, Officer Hill rendered inadmissible the fruits of the unconstitutionally extended search.

II. Relevant Authority

In analyzing an order denying a motion to suppress evidence pursuant to section 1538.5, we apply the following standard of review articulated by the California Supreme Court: As the finder of fact in a proceeding to suppress evidence (Pen. Code,  1538.5), the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. (People v. Lawler (1973) 9 Cal.3d 156, 160 [].) Accordingly, in reviewing the instant suppression order, we consider the record in the light most favorable to . . . respondents since all factual conflicts must be resolved in the manner most favorable to the [superior] courts disposition on the [suppression] motion. (People v. Martin (1973) 9 Cal.3d 687, 692 [].) But while we defer to the superior courts express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found. (People v. Glaser (1995) 11 Cal.4th 354, 362 []; People v. Lawler, supra, 9 Cal.3d at p. 160.) (People v. Woods (1999) 21 Cal.4th 668, 673674.)

III. Proceedings Below

After hearing argument from both parties, the trial court stated that it had concerns about appellants credibility for a few reasons. The court believed it less than credible that appellant would be driving at a speed of 62 or 63 miles per hour on the No. 5 Interstate at 11:30 in the morning. The courts own experience was that appellant would have been driving too slowly for the rest of the traffic. Also, if appellant had been driving at the speed limit, there was no need to keep changing lanes when the police car merged onto the freeway. His actions were not logical to the court. The court also found that appellants known convictions and other convictions were an impairment to his credibility although not a huge one.

The court acknowledged that there was a rental agreement in the name of the person appellant claimed to be, and appellant knew the drivers license number for this person. The court stated it had concerns with the continuation of the search, even with permission. The court believed, however, that the officer could have arrested appellant for not being properly identified, stating: The fact he knows a drivers license number that is the same drivers license number of the person whose name is on multiple rental agreements in the carwhich started the officer thinking whats going on, why do we have a all [sic] these rental agreements in this carI think he probably could have arrested him, evenyou know, for not having any I.D., for them not knowing who he is. Thats one of the aspects of not having any I.D. on you. No matter how you try to confirm who you are, the officer has cause to arrest you, to properly identify you and find out who you are. The court concluded by saying, Got to tell you, this is a close one. As I said, I have trouble with the officer extending the search to the trunk, although indicating he was looking for, possibly, I.D. in spite of the fact the defendant said he had none. But Im not going to, in this case, disbelieve the officer that in fact he had permission. And I think permission gets by the need for probable cause to go into the trunk. You dont need probable cause if you have permission. And I think the officer would make a proper search based on the facts he had, cause he didnt really know who this guy was. He knew this guy had as [sic] drivers license number that matched the name. But that doesnt mean he knew who he was. So Im going to deny the motion.

IV. Motion Properly Denied

Although appellant testified that he did not give consent at all to a search, his argument now focuses on the issue of whether Officer Hills search exceeded the scope of appellants consent. A search conducted pursuant to a valid consent may violate the Fourth Amendment if it exceeds the scope of the consent, which usually is defined by the expressed object of the search based on what reasonably would have been understood by the exchange between the officer and the person giving consent. (People v. Jenkins (2000) 22 Cal.4th 900, 974, citing Florida v. Jimeno (1991) 500 U.S. 248, 251 (Jimeno).) Whether a search exceeded the scope of consent given is a question of fact. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.)

Jimeno reiterated the principle that [t]he touchstone of the Fourth Amendment is reasonableness. (Katz v. United States [(1967)] 389 U.S. 347, 360 []. (Jimeno, supra, 500 U.S. at p. 250.) With respect to the scope of consent to search, Jimeno stated that [t]he standard for measuring the scope of a suspects consent under the Fourth Amendment is that of objective reasonablenesswhat would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.] (Jimeno, supra, at pp. 250251; see also People v. Jenkins, supra, 22 Cal.4th at p. 971.)

In Jimeno, a police officer stopped a vehicle for a moving violation and informed the driver, Jimeno, whom the officer had been following, that he suspected Jimeno was carrying narcotics in the car. Jimeno gave consent to search the car. The officer found cocaine after opening a folded brown paper bag lying on the front passenger floorboard. (Jimeno, supra, 500 U.S. 248 at pp. 249250.) The United States Supreme Court determined that the drivers consent to a search of the vehicle included the search of a container that might contain drugs. A reasonable person would expect that narcotics would be carried in some form of container. (Id. at p. 251.) Thus, the consent given extended beyond the surfaces of the cars interior to the paper bag lying on the cars floor. (Ibid.)

As stated previously, it is for the trial judge to determine the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. (People v. Woods, supra, 21 Cal.4th at p. 673; People v. Lawler, supra, 9 Cal.3d at p. 160.) Whether a search was executed within the boundaries of the consent and thus was a valid one is a question of fact to be determined from the totality of the circumstances, and the trial courts determination must be upheld unless it is clearly erroneous. (People v. Bell (1996) 43 Cal.App.4th 754, 769; People v. Crenshaw, supra, 9 Cal.App.4th at p. 1408; U.S. v. Cannon (9th Cir. 1994) 29 F.3d 472, 477.)

In the instant case, the record shows that the trial court found credible the officers testimony that he had permission to search the entire vehicle. He asked for permission and appellant replied, Go ahead. The officer stated that it was only after he asked for such permission that he went to the glove box and obtained the rental agreement and continued the search for information that might identify the driver. Officer Hill asserted that he was looking for a correct rental agreement and some form of identification for appellant. Officer Hill stated that it was not his regular practice to trust the word of an individual who does not have a license but provides a name and drivers license number. He had previously encountered individuals who had memorized drivers license numbers and names that were not their own. Therefore, he continued to search the car to see if the appropriate identification was actually within the vehicle.

The trial court disbelieved appellants testimony that he never consented to a search of his car and noted the circumstances that caused appellants credibility to be questioned. It is clear from the trial courts reliance on consent as the justification for a search without probable cause that the trial court believed Officer Hills testimony that he received permission to search the entire car for the rental agreement and drivers license. The officers testimony provides substantial evidence to support the trial courts credibility finding. Considering the record in the light most favorable to respondent and resolving all factual conflicts in the manner most favorable to the trial courts disposition on the motion, we conclude the search was legal on the facts found by the trial court below. (See People v. Woods, supra, 21 Cal.4th at pp. 673674.)

It is true that Jimeno stated that the scope of consent is defined by the stated object of the search. (Jimeno, supra, 500 U.S. at p. 251.) In Jimeno it was determined that the inside of a bag was a logical place to look for the specific item being soughtnarcotics. With respect to the instant case, we note that it is not uncommon for individuals to carry documents and identification in briefcases or other types of bags, which are often placed in the trunk of a car during travel. Therefore, it was reasonable for Officer Hill to open the trunk to see if there was a briefcase or other container for documents within. Upon opening the trunk, Officer Hill saw a shoe box, which is also a container often used to store papers. Therefore, it was also reasonable of Officer Hill to open the shoe box.

Moreover, appellants testimony revealed that he at no time expressly limited Officer Hill to a search of the glove box. When Officer Hill popped open the trunk, appellant asked the sergeant with him why was this officer searching my vehicle like this. Although appellant now claims that his expectations reasonably led him to believe that the search would be limited, he did not protest when Officer Hill kept searching his car after obtaining a rental agreement from the glove box. He did not ask Officer Hill or the sergeant to stop the search even though he was not handcuffed or placed in a patrol car, but remained standing on the side of the road during the search. Therefore, as in Jimeno, appellant did not limit the scope of the officers search in any manner.

As our Supreme Court has pointed out, courts and commentators have observed that open-ended consent to search normally does not suggest that the person consenting would expect the search to be limited in any way. (People v. Jenkins, supra, 22 Cal.4th at p. 975.) Failure to object to the continuation of a vehicle search after giving general consent to search is properly considered as an indication that the search was within the scope of the initial consent. [Citations.] (People v. Bell, supra, 43 Cal.App.4th at p. 771.) As in Jimeno, without any express limitation on the search, it was objectively reasonable for the officer to conclude that the general consent to search the car included consent to search containers that might contain the item he sought. (Jimeno, supra, 500 U.S. at p. 251.) Therefore, the general authorization to search, which was never limited, included the shoe box inside the trunk. (Ibid.) Jimeno stated that there was no basis for requiring police to request separate permission to search each container in a car. (Id. at p. 252.)

People v. Cantor (2007) 149 Cal.App.4th 961 (Cantor), relied upon by appellant, is distinguishable from the instant case. In that case, a police officer stopped Cantors car for a traffic violation, and the officers suspicions were aroused by Cantors behavior and the smell of burnt marijuana inside the car. (Id. at pp. 963964.) The police officer asked permission for a real quick check of the car and Cantor consented. (Id. at p. 964.) The officer looked throughout the passenger compartment and then opened the trunk and looked through it. He also checked under the hood and rechecked the interior several times. The officer told Cantor he was going to obtain a police dog to sniff the car, and Cantor said okay. While removing items from the trunk to ensure the safety of the police dog, the officer saw a wooden box that Cantor identified as a record cleaning machine. When the officer saw, through a mesh screen, a paper bag inside the machine, he used a screwdriver to open a side panel and found cocaine inside the bag. (Ibid.)

The trial court denied Cantors motion to suppress the cocaine, finding that Cantor consented to a search of the entire car, including the trunk, and that Cantor was cooperative and did not request the officer to stop at any time. (Cantor, supra, 149 Cal.App.4th at pp. 964965.) The appellate court reversed, stating that the trial court erred by failing to recognize the limited scope of Cantors consent. The court observed that almost 15 minutes passed from the moment Cantor gave his consent, and nothing incriminating had been found despite an exhaustive search. At that point, if not sooner, the search should have ceased. The court stated that a typically reasonable person would not have understood his consent to include permission to unscrew the panel of a piece of equipment during a second search of the trunk. (Id. at p. 965.) The court believed that Cantors failure to object was irrelevant, since the officer had exceeded the scope of Cantors consent before the cocaine was found. (Id. at p. 966.)

The Cantor court adopted the reasoning of State v. Wells (Fla. 1989) 539 So.2d 464 (Wells), a case discussed in and distinguished by Jimeno, supra, 500 U.S. at pp. 251252. (Cantor, supra, 149 Cal.App.4th at pp. 966967.) Jimeno stated that it was probably unreasonable to believe that a person who consented to a search of his car intended that consent to include breaking open a locked piece of luggage inside the trunk, which was what occurred in Wells. (Jimeno, supra, at pp. 251252.) The Cantor court emphasized that Wells relied on the expectation of privacy shown by a person in his locked luggage, and it believed Cantor had manifested an expectation of privacy by placing the drugs inside a machine and screwing it shut. (Cantor, supra, at p. 967; see Wells, supra, at p. 467.)

In the instant case, the search was based not on a mere suspicion that there was contraband in the car, but on appellants actual failure to produce a legitimate rental agreement and his drivers license. The search of the car was not exhaustive and prolonged, as was the search of Cantors car. The officer did not look under the hood or search every nook and cranny of the car several times, although he did open the trunk. The officer did not look into any containers that were locked, fastened with screws, zipped, or even taped shut. He merely lifted the lid of a shoe box and saw a gun. And, as we have stated previously, we believe the officer had not exceeded the scope of appellants consent before he found the gun.

We believe the totality of the circumstances at the scene of the search provides substantial evidence to support the trial courts finding that Officer Hill was credible when he testified he had permission to search the car. We also believe it was reasonable for the officer to open the trunk and the shoe box in his search for any document that would identify appellant or that pertained to the vehicle he was driving.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, J.

DOI TODD

We concur:

__________________, P. J.

BOREN

__________________, J.

CHAVEZ

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[1] All further references to statutes are to the Penal Code unless stated otherwise.

[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).