P. v. Looper

Filed 8/28/07 P. v. Looper CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.

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

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffery J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

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Avery Heath Looper appeals from the judgment sending him to prison for six years, following his guilty plea to transportation of methamphetamine and possession for sale of more than one ounce of that drug. Looper also admitted he had a prior strike conviction. He contends that the court erred when it denied his suppression motion. Specifically, he argues the authorities unjustifiably impounded his truck and inventoried its contents, which included a pound of methamphetamine. We affirm.

FACTS

Looper was arrested for possession of methamphetamine and narcotics paraphernalia (a pipe) in 2003. (See Health & Saf. Code, 11377, subd. (a), 11364.) He was granted deferred judgment pursuant to Penal Code section 1000. 

Four months later, the Buena Park police detectives were conducting a narcotics investigation involving Alicia Finn. While watching her place, they observed Looper coming to and from the apartment in a blue pickup truck which he parked in Finns assigned parking spot. Suspicious of his repeated visits, two officers followed Looper and conducted a license plate check of the truck he was driving. They discovered the truck was registered to him, but that his license had been suspended for two different reasons more than three months before. The officers, however, decided to return to Finns apartment where the search warrant was executed.

During the search, Finn admitted to sharing the residence with Looper and showed the officers the bedroom that she claimed belonged to him. Inside that room, the officers discovered a glass pipe used to smoke methamphetamine, along with several empty plastic baggies and a scale, but no drugs. Finn told the officers that Looper had been living there for eight months and that he was helping her out.

After arresting Finn, the officers received information that Looper was en route to the Finn residence. The officers watched as Looper pulled into the apartment complex, driving on the suspended license. They observed him drive up to the apartment and stop the truck at an angle to the curb although it was not in a parking stall or spot. The officers characterized it as illegally parked. They confronted him, advis[ing Looper] that he was going to be placed under arrest for the pipe being inside his . . . room, and . . .[that] his vehicle was going to be towed because he had parked it illegally. In preparation for the towing, they searched the bed of the truck, discovering a pound of methamphetamine in a brown case which also held Loopers wallet, license and baggies.

DISCUSSION

When a suppression motions denial is reviewed on appeal, the standard to be employed is well-established: The trial court holds the power to determine the facts, select the appropriate rule of law and then apply the latter to the former to find if the search was constitutionally reasonable. On review, we accept those facts which were found by the trial court and which now pass the deferential substantial-evidence test. We then independently determine the appropriate rule of law and also independently review the application of the latter to the former for the ultimate decision of its passing constitutional muster. (See People v. Alvarez (1996) 14 Cal.4th 155, 182.)

The underlying issue in this appeal is whether the inventory search of Loopers vehicle was justifiably undertaken and properly executed. The Fourth Amendment permits a warrantless inventory search of a vehicle that is lawfully impounded and searched in accordance with established police protocol. (See People v. Williams (1999) 20 Cal.4th 119, 125-127; People v. Smith (2002) 95 Cal.App.4th 283, 294.) However, any search conducted without a warrant carries a presumption of illegality, and thus the police had the burden to establish that the trucks impound was constitutionally reasonable under the circumstances. (People v. Williams (2006) 145 Cal.App.4th 756, 761-762.) In assessing the legality of an impoundment, courts focus on the purpose of the impound rather than the purpose of the inventory. (People v. Aguilar (1991) 228 Cal.App.3d 1049, 1053.)

The People present several justifications for the search of Loopers vehicle. First, they argue that it was justified as incident to his misdemeanor arrests for driving on a suspended license and for having drug paraphernalia (the pipe found in the bedroom, clear baggies for packaging, and a glass bong with white residue). Second, they propose the officers had probable cause to search the truck for narcotics, based on the information they already developed from the surveillance of Finns residence and its search.[1] Third, they justify it as a normal impound and inventory, procedural tools of the states community caretaking functions, articulated by the United States Supreme Court in Cady v. Dombrowski (1973) 413 U.S. 433, 441. Under this rationale, vehicles that jeopardize both the public safety and the efficient movement of vehicular traffic may be lawfully impounded to prevent or cure a dangerous hazard. (South Dakota v. Opperman (1976) 428 U.S. 364, 369.)

In Cady v. Dombrowski, supra, 413 U.S. 433, the high Court held that the police were justified in impounding a vehicle left in the middle of a busy highway because it presented a nuisance to the flow of traffic. (Id. at pp. 436-441.) In contrast, in People v. Williams, supra, 145 Cal.App.4th 756, the court held that no community caretaking function was served when a driver, not wearing his seatbelt, legally parked his car in front of his home but in a manner that it did not block[] a driveway or a crosswalk, or . . . pose[] a hazard or impediment to other traffic. (Id., at pp. 762-763.) Thus, the impound of Williamss car served no community caretaking function and could not be justified.

The Attorney General argues that Looper illegally parked the truck at an angle to the curb and not in any parking slot, creating the type of hazard or irregularity that justified its impoundment. Looper responds, however, that the truck was not on a public street or thoroughfare, blocking traffic or constituting a threat to the general safety. He characterizes the entire apartment complexincluding the vehicle lanesin which Finn and he lived as private property, albeit open to the public with unobstructed ingress and egress. Because it was not a public street, his parking method could not be illegal unless his truck actually blocked the lane. He argues the state failed to present any evidence that Loopers truck was preventing anothers access or endangering anyone and thus, no community caretaking function was served by the impound.

On the other hand, the officers testified it was illegally parked, describing its unusual position. Moreover, there was no evidence that other drivers parked their vehicles in the unusual manner Looper had on this occasion. In Williams, the court emphasized that Williams had improperly driven his car without using his seatbelt but he had parked his car in front of his home as had other residents on that same street. It neither blocked a driveway nor obstructed general traffic. It thus was not illegally parked. Also, as emphasized by the court, Williams had a valid license to drive. Based on these facts, the reviewing court found there was no need to remove the car, and its impoundment therefore was not properly warranted under Vehicle Code section 22651, subdivision (h)(1).[2] (People v. Williams, supra, 145 Cal.App.4th at pp. 762-763.)

These very facts distinguish Loopers situation from that in Williams. Looper was not validly licensed to drive: His license had been suspended for two different reasons in the preceding three months.[3] According to the officers, he did not park his truck legally, and there was no evidence that others had used the common access lanes as unmarked parking areas in the manner that Looper had.

The Attorney General argues separately that the officers were justified in impounding Loopers vehicle simply because he was driving without a valid drivers license. This argument is anchored to Vehicle Code section 22655.5, subdivision (a), which provides in relevant part that a peace officer may remove a vehicle when it is found upon  . . . private property and a peace officer has probable cause to believe that the vehicle was used as a means of committing a public offense. (Italics added.) The Attorney General argues that because the officers were aware that Looper was driving without a valid drivers license, this constituted a public offense for which the officers could impound the truck. (See People v. Auer (1991) 1 Cal.App.4th 1664, 1667-1668 [officer could impound vehicle as defendant had suspended license to ensure defendant would not drive his car after the officers departed.]; see also People v. Benites

(1992) 9 Cal.App.4th 309, 315 [officer impounded vehicle, fearing driver would probably drive off after he left].)

Looper responds that there was no fear that he would turn around and drive the truck again because he was taken into custody, thus making it impossible for him to move it. (See People v. Williams, supra, 145 Cal.App.4th at p. 763.) Nonetheless, the Attorney General replies that because Looper was seen driving it and was arrested as soon as he alighted from it, the impoundment was justified under the alternate provision of Vehicle Code section 22651, subdivision (h)(1). (See fn. 2, ante.) This explanation is bolstered by the preceding argument that, due to its illegal parking position, the truck was properly impounded after he was taken into custody.

Looper, on the other hand, counters that he was not actually driving or in control of his truck at the moment of the arrest, and thus Vehicle Code section 22651 was inapplicable. However, this argument is unpersuasive: The officers observed him driving, which is when the legal arrest was justified. They waited for him to stop before approaching his vehicle and placing him in custody, contacting him within a few steps of the trucks door. This choice did not change the nature of the arrest.

The real argument advanced here is that we should disregard the arrest for driving on a suspended license as the officers did not list that on the arrest sheet. Once that explanation is disregarded, Looper contends his arrest was illegal. His premise is that Penal Code section 836 permits a custodial arrest for a misdemeanor only if it occurs in the arresting officers presence. From this, he concludes the officers could not arrest him for the drug pipe because it was seized in his absence and thus the offense never occurred in the officers presence. As such, the arrest violated the state dictates as to a legal arrest. Without a legal arrest, Looper argues, the evidence must be suppressed, irrespective of the federal rule which permits the admission of evidence seized in violation of state dictates but in conjunction with federal rules of Fourth Amendment reasonableness. (See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354; see People v. McKay (2002) 27 Cal.4th 601, at p. 611 [Our determination of the validity of the search under the federal Constitution thus does not depend on whether it was authorized by state law. . . [for] the test is one of federal law.].) Specifically, he characterizes the Atwatercase as having been too broadly interpreted in McKay, and invites us to narrowly construe its provisions by reviewing its application here.

Such an invitation is declined primarily because review of its provisions is unnecessary. Looper was arrested for driving on a suspended license, even though the arresting sheet listed only the drug offenses of possession of methamphetamine for sale and possession of drug paraphernalia. His truck was impounded consistent with the provisions of Vehicle Code sections 22651 and 22655.5, which latter statute declares that an officer may remove a motor vehicle from . . . private property . . . [] . . . [w]hen any vehicle is found upon . . . private property and a peace officer has probable cause to believe that the vehicle was used as the means of committing a public offense. (See fn. 2, ante.) The former statute provided the authority to impound the vehicle if the driver, after having committed a public offense, was taken into custody while in control of a vehicle. Under these statutes, the impound was warranted under these circumstances.

DISPOSITION

The judgment of the trial court is affirmed.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

MOORE, J.

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[1] The greatest amount of discussion between the court and counsel during the hearing on the motion to suppress focused on this second point of justification: Whether there was sufficient probable cause to search the truck for contraband.

[2] Vehicle Code section 22651, subdivision (h)(1) provides in pertinent part that a peace officer may remove a vehicle [w]hen an officer arrests any person driving or in control of a vehicle for an alleged offense and the officer is, by this code or other law, required or permitted to take, and does take, the person into custody.

[3] The defense argued the officers were not aware of this fact when they decided to impound the car. However, two of the investigators testified they personally became aware of the suspensions before the day of the arrest but had not documented this information in any report.