P. v. Rangel

Filed 8/30/07 P. v. Rangel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This appeal arises from a felony conviction following entry of a guilty plea by defendant Daniel Juarez Rangel to possession of cocaine (Health & Saf. Code,  11350, subd. (a)), a felony, and to two misdemeanors, i.e., possession of not more than 28.5 ounces of marijuana (Health & Saf. Code,  11357, subd. (b)), and driving with a suspended license where the suspension was based upon driving under the influence of alcohol (Veh. Code,  14601.2, subd. (a)).[1] The guilty plea was entered after defendant was unsuccessful in moving to suppress the evidence supporting the drug possession charges.

In this appeal, defendant challenges the conviction, contending that the evidence used to secure the conviction of two of the offenses (i.e., the marijuana and cocaine) was the product of an unlawful search of his Mazda following a traffic stop. For the reasons below, we conclude that the search of defendants car was lawful both as an inventory search of an impounded vehicle, and as a proper search incident to defendants arrest. Accordingly, we affirm the judgment of the trial court.

FACTS[2]

On May 9, 2006, at approximately 1:00 a.m., Santa Clara County Deputy Sheriff Jay Helms was on patrol in a rural area of San Jose/Morgan Hill on Santa Teresa and Bailey Avenues. He observed a black Mazda MX6 that did not have a front license plate, in violation of section 5200, subdivision (a). After pulling over the car, Deputy Helms informed the driver, defendant, of the reason for the traffic stop and asked for his drivers license, registration, and proof of insurance. Defendant provided his registration, but he was unable to produce his drivers license. Defendant identified himself, advised the deputy of his drivers license number, and indicated that he had a drivers license but he just didnt have it with him. After running defendants name through the police radio, Deputy Helms determined that defendants drivers license had been suspended for a prior DUI.

Upon learning this information, Deputy Helms then planned to impound defendants car in compliance with the Vehicle Code. He asked defendant for permission to search the car but he told [Deputy Helms] he wasnt sure if he was comfortable with that. Deputy Helms informed defendant that the car would be towed and that he needed to conduct an inventory search incident to towing it. Such an inventory when impounding a vehicle is a general policy of the Santa Clara County Sheriffs Department (Department). The written policypatrol procedure number B6 includes an inspection of the exterior and interior for damage and a search of the entire passenger area and the trunk. The Department uses a form (CHP 180) developed by the California Highway Patrol. Deputies are supposed to note on the form any damage to the vehicle and anything valuable located in it.

Deputy Helms had defendant sit in the back of his patrol car during the vehicle search. During his search of the Mazdas interior, Deputy Helms found in the center console two baggies containing a green leafy substance which [he later] determined was marijuana. He also found a cigarette box on the passenger seat. Deputies in the Department typically check the inside of such cigarette boxes during inventory searches because [p]eople are known to put their California drivers licenses, money, other valuables, various things inside their cigarette boxes . . . . When Deputy Helms checked the inside of the cigarette box, he found a plastic baggie containing a clear white substance. He performed a test on a small amount of the substance using an NIK (narcotics identification kit) and it tested presumptive positive for cocaine and cocaine base. (The parties stipulated that a laboratory report that indicated that the substance was 0.25 grams of cocaine would be admitted into evidence.)

After completing the inventory search in which he found the marijuana and cocaine and after conducting the testing, Deputy Helms placed defendant under arrest for driving on a suspended license, possession of cocaine, and possession of less than one ounce of marijuana.

PROCEDURAL BACKGROUND

Defendant was charged in a three-count information with possession of cocaine (Health & Saf. Code,  11350, subd. (a); count 1), a felony; possession of not more than 28.5 ounces of marijuana, a misdemeanor (Health & Saf. Code,  11357, subd. (b); count 2); and driving with a suspended license where the suspension was based upon driving under the influence of alcohol, a misdemeanor ( 14601.2, subd. (a); count 3). Defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5. He argued that the vehicle search was unlawful because it could not be justified (1) as a vehicle search based upon probable cause, (2) as valid search incident to arrest, or (3) as a valid inventory search. After a combined preliminary hearing and hearing on the motion to suppress, the court denied defendants motion.

On December 5, 2006, defendant pleaded guilty to the three counts charged. Thereafter, the trial court suspended the imposition of a three-year sentence, placed defendant on probation for three years, ordered defendant to serve an eight-month jail term, and revoked his driving privilege for one year. Defendant filed a timely notice of appeal of the denial of the motion to suppress. The denial of the suppression motion may be challenged by an appeal from the judgment entered after defendants guilty or no contest plea. (Pen. Code,  1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 896.)[3]

DISCUSSION

I. Standard of Review

An appellate courts review of a trial courts ruling on a motion to suppress is governed by well-settled principles. [Citations.] [] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] The [trial] courts resolution of each of these inquiries is, of course, subject to appellate review. [Citations.] [] The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review. (People v. Williams (1988) 45 Cal.3d 1268, 1301; see also People v. Ayala (2000) 23 Cal.4th 225, 255.) All presumptions favor the trial courts exercise of its power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence, and draw factual inferences, and the trial courts findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, quoting People v. Lawler (1973) 9 Cal.3d 156, 160.)

Based upon its factual findings, the trial court has the duty to determine whether the search was unreasonable within the meaning of the Constitution. (People v. Lawler, supra, 9 Cal.3d at p. 160.) This issue is a question of law. Therefore, we must measure the facts, as found by the trial court, against the constitutional standard of reasonableness for the search and/or seizure. (Ibid.; People v. Leyba, supra, 29 Cal.3d at p. 597.)

Under California Constitution, article I, section 28, subdivision (d), the reasonableness of the search or seizure is measured against federal constitutional standards. (People v. Woods (1999) 21 Cal.4th 668, 674.) Only evidence that is the product of an unreasonable search and seizure in violation of federal standards shall be suppressed. (In re Lance W. (1985) 37 Cal.3d 873, 890.)

II. Vehicle Inventory Search

Defendant argues on appeal that the search of the Mazda performed by Deputy Helms could not be justified as a lawful inventory search. He contends that the search was merely a ruse to investigate possible criminal activity. This position has no merit.

A. Applicable Law

Searches and seizures conducted without a warrant are per se unreasonable under the Fourth Amendment [of the United States Constitution]subject only to a few specifically established and well-delineated exceptions. (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.) One of those well-recognized exceptions is an inventory search. (Colorado v. Bertine (1987) 479 U.S. 367, 371 (Bertine).) An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage. [Citation.] (Whren v. United States (1996) 517 U.S. 806, 812, fn.1.)

In South Dakota v. Opperman (1976) 428 U.S. 364, 375-376 (Opperman), the United States Supreme Court held that the Fourth Amendment requirement of reasonableness is satisfied where the police, following standardized procedures, conduct an inventory of a vehicle that has been impounded pursuant to the exercise of police community caretaking functions. And in Bertine, supra, 479 U.S. 367, the court reaffirmed the reasonableness of inventory searches conducted under standardized police procedures after the vehicles impoundment. It held that inventory searches were justified by three strong governmental interests, namely, the protect[ion of] an owners property while it is in the custody of the police, . . . insur[ing] against claims of lost, stolen, or vandalized property, and [the] guard[ing of] the police from danger. (Id. at p. 372; see also People v. Williams (1999) 20 Cal.4th 119, 126 [quoting Bertine].)

In Bertine, supra, 479 U.S. at p. 368, the defendant was arrested for driving under the influence and his van was impounded. Before the tow truck arrived, an officer, following local department procedures, performed a detailed inspection of the vehicle. (Id. at pp. 368-369.) He located a closed backpack behind the front seat; he opened it and found a nylon bag that contained canisters that he opened and which contained controlled substances, cocaine paraphernalia, and $700 in cash. (Id. at p. 369.) In upholding the inventory search, the court emphasized that there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. In addition . . . , the police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism, or negligence. Such knowledge also helped to avert any danger to police or others that may have been posed by the property. (Id. at pp. 372-373, fn. omitted.)

In Florida v. Wells (1990) 495 U.S. 1 (Wells), the high court reaffirmed the validity of inventory searches conducted by the police pursuant to standardized criteria. With respect to closed-container searches, it clarified that its view that standardized criteria [citation], or established routine [citation], must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into a purposeful and general means of discovering evidence of crime, Bertine, [supra,] 479 U.S. at [p.] 376 (Blackmun, J., concurring). (Id. at p. 4.) There, the Supreme Court held that the trial court should have suppressed the evidence (i.e, marijuana seized from locked suitcase in the trunk of vehicle that was the subject of police inventory search), because the police had no policy whatever with respect to the opening of closed containers encountered during an inventory search. (Id. at pp. 4-5.)

B. Justification for Impoundment of Vehicle

Defendant, citing People v. Williams (2006) 145 Cal.App.4th 756, argues that Deputy Helms was not justified in impounding the Mazda under a community caretaking rationale. People v. Williams is distinguishable and defendants argument is easily rejected. In Williams, the appellate court held that the inventory search of the defendants car was unlawful because the prosecution failed to establish the threshold matter that the impoundment was lawful. There, the defendant was stopped by a police officer for a seatbelt violation. (Id. at p. 759.) He pulled his rental car over to the curb in front of his residence and produced a valid drivers license; the defendant did not provide either proof of insurance or registration. (Ibid.)  The officer determined from a computer check that there was an outstanding arrest warrant for the defendant. (Ibid.)  The officer arrested the defendant and impounded the car. (Ibid.)  The court concluded, under the circumstances presented, that [n]o community caretaking function was served by impounding [the defendants] car. (Id. at p. 762.) Therefore, it held unreasonable the inventory search of the car that resulted in the seizure of a loaded handgun in a bag in the back seat. (Id. at p. 763.)

Here, after stopping defendant for failing to have a front license plate and determining that he was driving on a suspended license, Deputy Helms had a duty under the Vehicle Code to impound the Mazda. Section 14607.6, subdivision (c)(1) provides: If a driver is unable to produce a valid drivers license on the demand of a peace officer enforcing the provisions of this code, as required by subdivision (b) of Section 12951, the vehicle shall be impounded regardless of ownership, unless the peace officer is reasonably able, by other means, to verify that the driver is properly licensed. Prior to impounding a vehicle, a peace officer shall attempt to verify the license status of a driver who claims to be properly licensed but is unable to produce the license on demand of the peace officer. Moreoverunlike the circumstances in Williams where the defendants car was parked lawfully in front of his homedefendants Mazda was pulled off to the side of the road in a very rural part of the county. (Cf. People v. Benites (1992) 9 Cal.App.4th 309 [decision to impound car pulled over in remote location after valid traffic stop, where driver acknowledged his license was suspended, held reasonable].) Thus, in contrast to the circumstances in Williams, the impoundment of defendants car was clearly a proper exercise of the community caretaking functions of the Department.

C. Reasonableness of Inventory Search

The impoundment of defendants car being justified, we examine the inventory search here to determine its Constitutional reasonableness. Under Opperman, supra, 428 U.S. 364, Bertine, supra, 479 U.S. 367, and Wells, supra, 495 U.S. 1, an inventory search following standardized procedures or an established routine of a properly impounded vehicle does not violate the Fourth Amendment. And the policy or practice need not be in writing. (See People v. Williams, supra, 20 Cal.4th at p. 127 [policy governing search of closed containers found during inventory search need not be in writing and need not eliminate room for police discretion]; People v. Steeley (1989) 210 Cal.App.3d 887, 889 [Bertine does not require inventory search policy be written].)

Here, Deputy Helms testified that it was part of the Departments general written policy to conduct a thorough search of the exterior and interior of an impounded vehicle to identify any vehicle damage and to note any contents that are valuable. Department policy requires that the deputy document on a form (CHP 180) the existence of any vehicle damage or any valuable contents.[4] As such, the Departments written policy is similar to the oral policy of the Tulare County Sheriffs Department that was determined by the Fifth District Court of Appeal to be sufficiently standardized to satisfy the Fourth Amendment. (People v. Needham(2000) 79 Cal.App.4th 260, 267.) Deputy Helms testified further that it is routine practice for Department deputies to inspect the contents of cigarette boxes found during inventory searches because [p]eople are known to put their California drivers licenses, money, other valuables, various things inside their cigarette boxes . . . .

Deputy Helms followed his Departments policy by inspecting the Mazdas interior, including the center console where he found the baggie of marijuana. He also followed the Departments policy and practice by inspecting the interior of the cigarette boxfound to contain cocaine and cocaine basefor possible valuables. Therefore, it is plain that the inventory search conducted here did, in fact, follow the mandate of the United States Supreme Court that standardized criteria [citation], or established routine [citation], must regulate the opening of containers found during inventory searches . . . . (Wells, supra, 495 U.S. at p. 4.)

Defendant, however, asserts that the search was unreasonable because Deputy Helms failed to follow proper procedure by listing the contents of the Mazda on the CHP 180 form. But Deputy Helms did testify that he noted on the form your basics . . . I mean only the evidence that was collected. Then I noted that it had a front seat, a rear seat, an ignition key, registration, alternator, battery. He testified that it is not general practice to list all articles found inside the vehicle: We generally only list big items of great value. We dont do an itemized list of every single thing in the car. Deputy Helms cited a laptop computer and a tool chest full of tools as examples of valuable items that would be listed on the form. We reject defendants contention that the failure to list personal property found in the Mazdawhere such failure did not contravene the Departments policy or practice for inventory searchesmade the search unreasonable.

But defendant nonetheless contends that the inventory search was unreasonable because it was in reality a ruse for making a warrantless investigative search proscribed under Wells, supra, 495 U.S. 1. This claim of ruse or pretext is wholly unsupported by the record. There is no evidence that Deputy Helms targeted defendant for investigation or that the deputy had a preexisting knowledge of suspected criminal activity involving defendant. (See People v. Green (1996) 46 Cal.App.4th 367, 374 [no evidence that inventory search was ruse to try to discover evidence of criminal activity].) As such, the circumstances here are very different from those in People v. Aguilar (1991) 228 Cal.App.3d 1049, relied on by defendant. There, the court held that the supposed inventory search of the defendants car was pretextual because the arresting officer suspected the driver of being involved in criminal activity and impounded the car so he could look in the trunk (he never gave any other reasons for the impound). (Id. at p. 1051.) No evidence existed here that Deputy Helmss decision to impound the Mazda was based upon anything other than his compliance with the Vehicle Code.

The decision to impound defendants car was justified under section 14607.6, subdivision (c)(1). The inventory search conducted by Deputy Helm was reasonable. Therefore, the court below correctly denied defendants motion to suppress.

III. Search Incident To An Arrest

We have concluded that the search was lawful as an inventory search in connection with the proper impounding of defendants car. But even were we to find it unreasonable on that basis, we consider whether the search was proper as a search incident to an arrest.

Defendant concedes that his detention by Deputy Helms for driving with a suspended license in violation of section 14601.2 was lawful. He argues, however, that his lawful detention for a minor traffic offense[] did not justify a general search of his car, and, in particular, because he had not been arrested, the search of the cigarette box could not be justified as either a search for weapons or a search incident to an arrest. We reject defendants contentions.

In New York v. Belton (1981) 453 U.S. 454 (Belton), the United States Supreme Court considered the reasonableness of a search of a car incident to the arrest of its passengers after the car was stopped for speeding. After contacting the driver and determining that none of the four passengers owned the car or was related to its owner, the policeman smelled burnt marijuana and observed an envelope that he believed to contain marijuana. (Id. at pp. 455-456.) After directing the occupants to get out of the car and placing them under arrest, the officer searched the passenger compartment of the car; in the back seat, he located a jacket that belonged to the defendant, unzipped one pocket, and discovered cocaine. (Id. at p. 456.) The court held that the search was lawful, relying on Chimel v. California (1969) 395 U.S. 752, which had authorized the warrantless search of a person contemporaneous with his or her arrest. The Belton courtconcluded that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. [] It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. [Citations.] (Belton, supra, at pp. 460-461, fns. omitted.)

And the Supreme Court later explained that the principles enunciated in Belton were not based upon whether the officer ordered the occupants out of the car or made contact with them while they were still in it. (Thornton v. United States(2004) 541 U.S. 615, 620.) Accordingly, it held that if a lawful arrest is made of a recent occupant of a vehicle present at the scene, the officer may search the entire passenger compartment of the car to ensure the officers safety and to preserve evidence. (Id. at pp. 622-623.)

There are four components under Belton to a lawful search of the passenger compartment of a vehicle incident to an arrest. (People v. Stoffle (1991) 1 Cal.App.4th 1671, 1679-1680.) They are (1) a lawful custodial arrest (id. at p. 1679); (2) the search must be contemporaneous with the arrest (ibid.); (3) the search must only involve the passenger compartment (id. at p. 1680); and (4) the arrestee must have been an occupant or recent occupant of the auto searched. (Ibid.) Here, each of the four Stoffle elements was satisfied.

Defendant concedes that Deputy Helms had a lawful basis for detaining him based upon his violation of section 14601.2. The search of the Mazda was contemporaneous with the arrest. Further, the fact that defendant had not been formally arrested prior to the search is immaterial. A search incident to a lawful arrest need only be contemporaneous with it; the search may precede the arrest as long as probable cause for the arrest exists before the search is conducted. (People v. Cockrell (1965) 63 Cal.2d 659, 666; see also In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239.) Here, the search was in fact contemporaneous with the arrest. And the search conducted by Deputy Helms was of the Mazdas passenger compartment only, thereby satisfying the third Stoffle element. Under Belton, supra, 453 U.S. at p. 460, the search could lawfully include the contents of any containers found within the passenger compartment, namely, the cigarette box that contained the cocaine and cocaine base. Moreover, even were there any question as to the lawfulness of the search of the cigarette box as being incident to defendants arrest for violating section 14601.2, once Deputy Helms discovered the two baggies of marijuana in the center console, he could not ignore it, and he was certainly justified in searching the cigarette box for additional contraband. (Cf. People v. Avila (1997) 58 Cal.App.4th 1069, 1075 [peace officer performing lawful weapons frisk, upon discovery of contraband, cannot be expected to ignore it].)[5] Lastly, there is no dispute that defendant was an occupant or recent occupant of the Mazda.

Defendants reliance upon Knowles v. Iowa (1998) 525 U.S. 113 is misplaced. There, the defendant was stopped for speeding and given a citation (as opposed to being arrested). (Id. at p. 114.) After issuing the citation, the officer searched the car and found marijuana and a pipe underneath the drivers seat. (Ibid.)  The court held that the search was unreasonable, concluding that neither the rationales of officer safety nor the preservation of evidence provided justification for the complete search of the car. (Id. at pp. 117-119.) Here, there is no evidence that Deputy Helms issued a citation to defendant before conducting the search. And he was (defendant admits) justified in detaining defendant after determining that he had violated section 14601.2. (See  14602.6, subd. (a): Whenever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked . . . the peace officer may . . . immediately arrest that person and cause the removal and seizure of that vehicle . . . .)

We conclude that the search of defendants car was lawful on the alternative basis that it was a valid search incident to defendants arrest.

DISPOSITION

The trial court properly denied defendants motion to suppress. Accordingly, the judgment of conviction is affirmed.

Duffy, J.

WE CONCUR:

Mihara, Acting P.J.

McAdams, J.

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[1] All further statutory references are to the Vehicle Code unless otherwise stated.

[2] The facts are taken from the testimony given at the hearing on defendants motion to suppress. There was one witness who testified at this hearing, Santa Clara County Deputy Sheriff Jay Helms.

[3] We note that the record presented before us does not disclose that defendant renewed the motion to suppress, pursuant to Penal Code section 1538.5 subdivision (i), after the courts initial denial of the motion at the time of the preliminary hearing. Although the failure to renew the motion to suppress may result in the defendants forfeiture of any appellate challenge (People v. Lilienthal, supra, 22 Cal.3d at pp. 896-897; People v. Hinds (2003) 108 Cal.App.4th 897, 900), the Attorney General does not assert on appeal that defendant forfeited his challenge to the search. Defense counsel, the deputy district attorney, and the trial court all contemplatedat both the time defendant entered his plea and when he was sentencedthat defendant would challenge the validity of the search on appeal. Accordingly, irrespective of whether defendant forfeited this challengewhich forfeiture, we emphasize, was not asserted here by the Attorney Generalwe will exercise our discretion to decide the issue here on the merits. (See In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 [appellate courts, in their discretion, may review forfeited claims].)

[4] [A] CHP 180 . . . is a standard California Highway Patrol form. . . . The purpose of the CHP 180 form and the inventory is, among other things, to preserve a record of the physical condition of the vehicle and its contents when police take possession of it. (People v. Williams, supra, 20 Cal.4th at p. 123.)

[5] Deputy Helms testified that he found the two baggies of marijuana in the center console. Shortly afterward in the hearing, he testified that he found a cigarette box on the front passenger seat which he found to contain cocaine and cocaine base. While it is not entirely clear from the record that Deputy Helmss discovery of the marijuana preceded the discovery of the cocaine, this order of events is reasonably inferable from the record. We defer to the trial court which may have found implicitly, based upon substantial evidence, that Deputy Helms discovered the marijuana and later discovered the cocaine and cocaine base. (People v. Leyba, supra, 29 Cal.3d at pp. 596-597.)