P. v. Revelez

Filed 3/22/07 P. v. Revelez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Sunni Maree Revelez appeals from the denial of a suppression motion. In a five-count information, appellant was charged with felony possession of a controlled substance within the meaning of Health and Safety Code, section 11377, subdivision (a) (count 1). The remaining 4 counts were charged as misdemeanors: driving under the influence of alcohol (Veh. Code,  23152, subd. (a) count 2); driving with a blood alcohol level of .08 percent or higher (Veh. Code  23152, subd. (b) count 3); being under the influence of a controlled substance (Health & Saf. Code,  11550, subd. (a) count 4); and possession of marijuana while driving. (Veh. Code,  23222, subd. (b) count 5.)

Appellant pleaded not guilty to all counts and filed a motion to suppress evidence (Pen. Code,  1538.5), which was denied. She subsequently withdrew her plea and entered a guilty plea as to counts 1 and 2 and the remaining counts were dismissed. Appellant renewed her suppression motion, which was again denied. The trial court suspended imposition of sentence, and placed appellant on probation for 36 months, which included 30 days in county jail as a condition of probation. We conclude the suppression motion was properly denied, and affirm.

FACTS

Officer Robert Smith of the California Highway Patrol (CHP) was on duty at 1:00 a.m. on the 101 freeway in Ventura. He and his partner saw a truck traveling at about 75 miles per hour and weaving between lanes. They made a traffic stop on the shoulder of the freeway.

As Officer Smith approached appellant he noticed the odor of alcohol and saw that her pupils were dilated. He administered two preliminary alcohol screening tests, the first at 1:21 a.m. which showed a blood alcohol level of .087; and the second at 1:24 a.m. which reflected a blood alcohol level of .085. Officer Smith checked the size of appellant's pupils, her reaction to light, took her pulse and concluded she was under the combined influence of alcohol and drugs.

At 1:25 a.m., Officer Smith arrested and handcuffed appellant and placed her in the patrol car.^[1] Officer Smith did not search her truck on the shoulder of the freeway because it would have been "extremely hazardous" to search it at that location, particularly during "deuce hour," when drunk drivers are leaving bars and traveling on the freeway.

Officer Smith gave appellant the choice of having her truck towed off the freeway or having him drive it to a lot and park it. She chose the latter and he drove it less than a mile to the next exit and parked it in a commercial lot 200 feet from the freeway. He stayed in the truck and began his search, recovering a small baggie of marijuana in the center console. There was a pink purse on the passenger seat, from which appellant had earlier taken her identification and wallet. From the purse officer Smith retrieved a coin purse containing two bindles of methamphetamine, one containing 2.27 grams and the other containing .35 grams, as well as a small plastic straw with white residue.

Appellant filed a motion to suppress evidence, arguing that the search of her truck was not sufficiently contemporaneous to be justified as a search incident to arrest. At the hearing on the motion, the defense conceded that "a person can be removed from their vehicle, that a person can be placed in the back seat of a police vehicle, that a person can be in handcuffs and that a search which is contemporaneous can still be lawful." Counsel indicated that the sole issue was whether the search was contemporaneous with the arrest.

The trial court denied the motion, concluding that the delay was reasonable and contemporaneous with the arrest. It stated, "[W]e have a situation where at the prime time . . . for drunk drivers to be cruising the freeways, endangering all the other motorists out there [and] also endangering the Highway Patrol officer who is sitting at the side of the road with a subject, private citizen who is in custody and is also now at risk at the side of the road. [] . . . [] . . . The officer . . . was moving everyone to a place of safety and saving [appellant] the costs of towing and storage. The movement was minimal. The time lapse was minimal. And I believe that it was valid and did not render the search or seizure of the evidence anything but valid."

DISCUSSION

"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.) Although the question of the reasonableness of the search depends upon "'the facts and circumstances--the total atmosphere of the case,' [citation], those facts and circumstance must be viewed in the light of established Fourth Amendment principles." (Chimel v. California (1969) 395 U.S. 752, 765.)

Appellant does not challenge the lawfulness of her arrest. She argues only that the search of truck was not sufficiently contemporaneous with her arrest, thus a warrant was required.

A police officer may, incident to a lawful arrest, conduct a contemporaneous warrantless search of the arrestee's person and the area within the immediate control of the arrestee. (Chimel v. California, supra,395 U.S. at p. 763.) "[T]he 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." (New York v. Belton (1981) 453 U.S. 454, 460.) Such a search may be made "whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence." (U.S. v. Chadwick (1977) 433 U.S. 1, 14, overruled in part in California v. Acevedo (1991) 500 U.S. 565.) Courts have upheld a vehicle search as incident to an arrest even though the arrestee was confined in a locked patrol car when the search occurred. (People v. Stoffle (1991) 1 Cal.App.4th 1671, 1681-1682.)

Appellant cites a number of cases that address time delays between an arrest and subsequent search. None of her cited authorities, however, concern the question of officer safety and her brief is devoid of any argument on this issue. Appellant places emphasis on United States v. Vasey (9th Cir. 1987) 834 F.2d 782 to argue the search was not contemporaneous. In Vasey, the police conducted a vehicle search 30 to 45 minutes after the defendant had been arrested, handcuffed, and placed in a patrol car. Because of the delay, the court concluded that the search was not contemporaneous with the arrest and therefore violated the Belton rule. (Id. at pp. 787-788.) Vasey is factually distinguishable because it did not present a question of officer safety necessitating removal of the car to a different location before it could be searched.

We conclude that the search of appellant's truck was contemporaneous with her arrest. Officer Smith conducted an investigation, came to a conclusion about appellant's physical condition and arrested her. He, his partner and appellant could have been placed at physical risk had he searched the car on the shoulder of the freeway. Instead, he chose to search the car in a reasonably close location where it was safe to do so. The search was conducted 200 feet from the next exit and only 22 minutes after appellant's arrest. The search was lawful and appellant's suppression motion was properly denied.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Kevin J. McGee, Judge

Superior Court County of Ventura

______________________________

Kenneth I. Clayman, Public Defender, and Michael C. McMahon, Chief Deputy Public Defender, for Defendant and Appellant.

Bill Lockyer, Edmond G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Paul M. Roadarmel, Jr., Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1]Immediately after appellant's arrest, Officer Smith administered two additional breath tests using a portable evidentiary device supplied by the Ventura County Crime Lab. The tests, conducted at 1:20 a.m. and at 1:32 a.m., both a blood alcohol level of .08.