P. v. Yarbrough

Filed 10/11/06 P. v. Yarbrough CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Arthur E. Wallace, Judge.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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Following the denial of her motion to suppress evidence (Pen. Code, § 1538.5), appellant Joyce Yarbrough pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377) and admitted an allegation she had suffered a “strike.”^[1] The court imposed a prison term of 32 months.

On appeal, appellant’s sole contention is that the court erred in denying her suppression motion. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts

At the hearing on the suppression motion, Kern County Deputy Sheriff Edward Tucker testified that on July 8, 2005, he effected a stop of a car driven by appellant after observing a lei hanging from the car’s rearview mirror, obstructing the driver’s view, in violation of Vehicle Code section 26708.^[2] There were two passengers in the car; Jeremy Edgemon was in the front seat and Jonn White was in the rear seat.

After effecting the stop, Deputy Tucker approached the car and spoke to both appellant and Edgemon. At some point thereafter, the deputy learned from “dispatch” of the existence of an “active” warrant for Edgemon’s arrest. The deputy then handcuffed Edgemon and placed him in the rear seat of the patrol car.

Thereafter, Deputy Tucker asked appellant “if there was anything illegal” in the car. She said there was not. The deputy then asked for permission to search the car. Appellant asked the deputy why he wanted to search the car. He responded that Edgemon was on probation and “subject to search.”^[3] At that point, appellant said,

“ ‘Okay’ “ and the deputy asked her to step out of the car.

As appellant got out of the car, she picked up a purse which was in the front-seat area of the car, between where she and Edgemon had been sitting. Deputy Tucker directed appellant to set the purse down on the lid to the trunk of the car and walk to the rear of her car. By that time another deputy, Deputy King, had arrived on the scene. White was “taken out of the vehicle” either “shortly before or shortly after” Deputy Tucker told appellant to place the purse on the lid of the trunk, and Deputy Tucker, “for officer safety reasons while [he] conducted the search [of the car],” directed both appellant and White to “stand to the rear of the vehicle with . . . Deputy King . . . .”

Appellant complied, (as, presumably, did White) and Deputy Tucker then searched the car. After doing so, he asked appellant if the purse belonged to her. She said it did. The deputy then asked if there was “anything illegal” in the purse. Appellant said, “ ‘No.’ “ Deputy Tucker then asked for permission to search the purse. Appellant asked the deputy why he wanted to search the purse. He responded Edgemon was on probation^[4] and the purse had been within his reach when he was in the car, and asked appellant if there was anything in the purse “that would get her in trouble . . . .”^[5] Appellant answered, “ ‘Yes,’ “ and began to reach for the purse. The deputy “stopped her from reaching into the purse,” and “asked her what it was” in the purse that would “get her in trouble.” Appellant “indicated, ‘Methamphetamine --’ or, ‘Meth.’ “ Deputy Tucker asked appellant “where it was located,” and she “pointed to a . . . blue makeup bag” in the purse. The deputy then “searched the blue makeup bag and located suspected methamphetamine.”

On cross-examination, Deputy Tucker testified the search of the purse was justified as a “probation search” and a “search incident to arrest [of Edgemon],” and because appellant told the deputy the purse contained methamphetamine.

Procedural Background

In her moving papers, appellant challenged the search of her purse on the ground that no search warrant had been obtained. In their memorandum of points and authorities filed in response, the People argued the search was justified because “[appellant] told the officer that there was ‘meth’ inside the purse.” At the hearing, defense counsel argued (1) the search could not be justified as a probation search because “there [was] no evidence” Edgemon was on probation; (2) the search could not be justified as search incident to Edgemon’s arrest because the purse belonged to appellant; and (3) the search could not be justified on the basis of consent because appellant “had no choice in the matter . . . .”

The prosecutor countered that the warrantless search was justified because (1) it was conducted incident to the arrest of Edgemon; (2) appellant consented to the search; and (3) based on appellant’s admission regarding the contents of the purse, there was probable cause to search.

The court ruled the search could not be justified on consent grounds because “[w]hen [appellant said] ‘Whatever,’ at that point in time her consent is not voluntary” and therefore “not valid.” Although it is less clear, it appears the court rejected the prosecution’s probation-search and search-incident-to-arrest theories as justifications for the warrantless search of the purse. The court found that “[i]t turns out that” the reason Deputy Tucker gave to appellant for his request to search the car, viz., that Edgemon was on probation, “[was] not a valid reason.” The court also stated, “[T]he deputy created the impression that he had an absolute right to search the vehicle and/or the purse pursuant to the . . . arrest of the front passenger. And he really didn’t.” However, the court concluded the search of the purse was justified because “the deputy did have probable cause,” based on appellant’s admission “that there was stuff in [the purse].”

DISCUSSION

“The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the right to be free of unreasonable searches and seizures. (U.S. Const., 4th Amend. . . . .)” (People v. Gallegos (2002) 96 Cal.App.4th 612, 622, emphasis added.) Appellant’s challenge to the denial of her suppression motion is based on the constitutional proscription against unreasonable seizures. She argues as follows: in directing her to place the purse on the lid to the trunk of the car, Deputy Tucker effected a seizure of the purse within the meaning of the Fourth Amendment; “the prosecution did not show probable cause or even reasonable suspicion why [Deputy] Tucker had the right to seize appellant’s purse”; as a result of this seizure evidence was discovered and seized ; and therefore such evidence should have been suppressed as the product of the unlawful seizure. We disagree.^[6]

“[The Fourth Amendment] protects two types of expectations, one involving ‘searches,’ the other ‘seizures.’ A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.“ (United States v. Jacobsen (1985) 466 U.S. 109, 113 [104 S.Ct. 1652], fns. omitted.) A seizure is “generally less intrusive“ on Fourth-Amendment protected interests than a search because “[a] seizure affects only the person’s possessory interests,” whereas “a search affects a person’s privacy interests.” (Segura v. U.S. (1984) 468 U.S. 796, 806 [104 S.Ct. 3380], emphasis added.) “To assess the reasonableness of official conduct under the Fourth Amendment, we must focus upon the governmental interests justifying the seizure, and balance them against the invasion that a seizure entails.” (People v. Gallegos, supra, 96 Cal.App.4th at p. 628, fn. 13, citing In re Randy G. (2001) 26 Cal.4th 556, 567.) “The touchstone of the Fourth Amendment is reasonableness . . . .” (United States v. Knights (2001) 534 U.S. 112, 118 [122 S.Ct. 587].)

We find instructive People v. Hart (1999) 74 Cal.App.4th 479. In that case, a police officer knocked on the door of a van parked in a residential area at 1:30 a.m.; made contact with the two occupants, a man and a woman; and asked them to produce proof of identification. The defendant looked around on the floor of the van and stated she was looking for her identification. After she pretended to search for several minutes, the officer asked both persons to get out of the van. They complied, and the officer patted them down for weapons and placed them in the rear of the patrol car. The defendant was initially evasive in answering the officer’s questions as to her reasons for parking in that location, and only after she had been removed from the van did she acknowledge that she and her cohort were there for a “ ‘rendezvous.’ “ (Id. at p. 485.)

The appellate court, after concluding it was permissible for the officer to require identification from the defendant, addressed the question of whether the officer

“could . . . obtain the identification from the van, himself, rather than allowing the defendant to retrieve it.” (People v. Hart, supra, 74 Cal.App.4th at p. 488.) The court concluded “[t]he officer did not need to permit [the defendant] to rummage further in the vehicle or her purse, with the attendant risk that a weapon would be pulled . . . .” (Id. at p. 490.) Relying on the principles that “[vehicle] [o]ccupants ‘possess a reduced expectation of privacy with regard to the property they transport in cars,’ “ and “[o]fficer safety is a legitimate and important governmental interest to consider in Fourth Amendment analysis,” the court held: “Balancing the degree of the intrusion of the defendant’s reduced expectation of privacy in the contents of her van against the promotion of the legitimate and important government interest of officer safety [citation], we conclude [the officer’s] search of the van for purposes of the defendant’s identification--following defendant’s failure to produce and earlier evasiveness--did not violate the Fourth Amendment.” (Ibid.)

As in Hart, the governmental interest at stake here is the “legitimate and important” one of officer safety. (People v. Hart, supra, 74 Cal.App.4th at p. 490.) Deputy Tucker was not required to ignore the possibility the purse that appellant had taken with her when she got out of the car contained a weapon. On the other side of the balance is the minimal infringement on appellant’s possessory interest in the purse caused by the deputy’s direction that she place the purse on the lid of the car trunk. And we note that Hart involved a search, whereas the instant case involves a seizure, which, as indicated above, is generally less intrusive on constitutionally protected interests than a search. Assuming for the sake of argument that the deputy interfered with appellant’s possession of property in a “meaningful” (United States v. Jacobsen, supra, 466 U.S. at p. 113) way when he directed appellant to put the purse down, and that the deputy therefore seized the purse within the meaning of the Fourth Amendment, when we balance the competing interests at stake here, we conclude any seizure that occurred was not constitutionally unreasonable. Therefore, appellant’s claim that the subsequent search was the product of an unlawful seizure must fail.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Harris, J., and Hill, J.

^[1] We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

^[2] Although appellant also testified at the hearing, in accordance with well-established principles of appellate review, the factual statement is taken almost entirely from Deputy Tucker’s testimony. (People v. Glaser (1995) 11 Cal.4th 354, 362 [in reviewing denial of a suppression motion, “We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence”]; People v. Maury (2003) 30 Cal.4th 342, 403 [in reviewing for substantial evidence, “[w]e resolve neither credibility issues nor evidentiary conflicts[,]” . . . “for it is the exclusive province of the . . . judge . . . to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends”].)

^[3] This statement was not admitted for the truth of the matter asserted in the statement, viz., that Edgemon was on probation, one of the conditions of which was that he could be searched regardless of whether probable cause existed for such search.

^[4] This statement was not offered to prove the truth of the matter asserted.

^[5] Appellant testified that when the deputy asked for permission to search the purse, she responded, “ ‘Whatever,’ because he told me it was because of Edgemon.”

^[6] As indicated above, appellant did not argue in the trial court that the search of the purse was the product of an unlawful seizure. We assume without deciding this issue is properly before us. (See Green v. Superior Court (1985) 40 Cal.3rd 126, 138 [prosecution’s failure to assert inevitable discovery as justification for search in suppression proceeding did not preclude appellate consideration of that theory where facts supporting it were fully developed in trial court].)