Opinion
C084986
06-05-2020
In re A.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.B., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JJC-JV-DE-2016-0000515, 70471)
After the juvenile court denied minor A.B.'s motion to suppress evidence (Welf. & Inst. Code, § 700.1) and found true that he had violated probation for the fifth time by possessing a firearm, the court continued him as a ward of the court and approved his placement in foster care or a group home. The minor contends the court should have granted the motion because the search that found the firearm was done without a warrant and the original consent to the search had been withdrawn. We conclude that the minor has not shown the legitimate expectation of privacy required to challenge the search, but even assuming he had such an expectation, he fails to show withdrawal of consent, and in any event the search was independently justifiable as an inventory search of the car in which the firearm was found. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The probation violation petition giving rise to this proceeding alleged that on April 13, 2017, the minor was arrested while in a car where a loaded firearm was located and admitted the firearm was his, though he was under a court order not to possess firearms.
The motion to suppress and the People's response
The minor moved to suppress evidence, asserting:
The officers approached a car with expired registration. The minor was sitting in the passenger seat and a female was sitting in the driver's seat. The police report stated that the officers asked the female for consent to search the car and she gave it, but the bodycam videos, which captured the contact, did not bear out this claim. The female's initial response to the request to search was inaudible, though an officer said she had granted consent. As a second officer pulled her out of the car, she asked if the police had to search. This question "communicat[ed] unequivocally that she [did] not feel she ha[d] any choice but to consent—or at the very least was withdrawing her consent." The second officer said that they did have to search, then did so. The officers subsequently obtained statements from the female and the minor. The officers did not have warrants for any of their acts.
According to the minor, the police conduct shocked the conscience because the police did not obtain voluntary consent to the search, but merely forced the minor and female to submit to their authority. (Cf. People v. Lazlo (2012) 206 Cal.App.4th 1063, 1070 [although exclusionary rule generally inapplicable in probation violation proceedings, evidence may be suppressed if police conduct shocks the conscience].)
In their response, the People asserted:
"On April 13, 2017[,] officers driving a marked patrol vehicle conducted a traffic stop on a white Acura Integra two-door coupe for expired registration. The vehicle was occupied by two persons, the driver and a passenger (later identified as the Minor) seated in the front right passenger seat. The officers contacted the occupants of the car and proceeded to find out who they were. The Minor told the officers that he was on probation albeit 'not searchable.' Within a few minutes, however, Stockton Police Officer [Laffranchini] did in fact confirm that the Minor was on 'searchable' probation.)
As the bodycam videos make clear, confirmation of the minor's searchable status did not arrive until after the car search was completed. Because we uphold the search on other grounds, we need not decide whether the minor's lie as to his searchable status would stop him from challenging the legality of a search that the officers might have been able to conduct validly as a probation search had they known his true status in time. (See People v. Watkins (2009) 170 Cal.App.4th 1403, 1408-1410 (Watkins).)
"One of the officers proceeded to ask the driver[, D.,] if there was anything illegal in the car. The officer making the inquiry affirmed a 'no' response from [D.] and asked if [D.] minded if the vehicle was checked. The officer then affirmed that [D.] did not mind if the vehicle was checked and advised her partner that [D.] could get out of the vehicle. [D.] inquired about needing to search the vehicle but at no time withdrew her consent for the officers to do so. In fact, [D.] stood at the front of the police vehicle, mere feet from her vehicle[,] and was in verbal contact with the officers. At no time did [D.] inquire further, indicate any concern or demonstrate any conduct to suggest that consent was withdrawn in relation to the search of her vehicle."
The People asserted that not only did the officers' conduct not shock the conscience, but that they were "at all times non-confrontational and friendly with both the Minor and [D.]," who never communicated unequivocally that her consent to search was withdrawn despite having every opportunity to do so.
Evidence at the hearing
On May 23, 2017, the juvenile court conducted a consolidated hearing on the motion to suppress and the violation of probation. The arresting officers testified, and their bodycam videos were played and admitted in evidence. The minor did not testify or present evidence.
Officer Antoinette Laffranchini testified that around 5:00 p.m. on April 13, 2017, she and her partner, driving a patrol vehicle, spotted a white Acura on which the license plate had expired "as of 2016." She advised her partner that the car's registration had expired over six months before, "which is a towable offense."
Vehicle Code section 22651 enumerates the circumstances under which a peace officer "may remove" a vehicle located within the territorial limits of his or her jurisdiction. These circumstances include "[i]f a vehicle is found or operated upon a highway, public land, or an offstreet parking facility . . . [¶] . . . [w]ith a registration expiration date in excess of six months before the date it is found or operated on the highway, public lands, or the offstreet parking facility." (Veh. Code, § 22651, subd. (o)(1)(a).) It is undisputed that the car in this case came within this provision.
When the officers conducted a traffic stop, the Acura pulled over into a Jack in the Box parking lot. A female was driving, and the minor was in the front passenger seat.
On cross-examination, the officer added that the minor tried to get out of the car, but she did not see him make any furtive movements inside the car.
After the car stopped, the officers approached, and Officer Laffranchini's partner advised the driver why she was pulled over. Officer Laffranchini asked the minor if he was on probation or parole. He said he was on probation, but when asked if this meant searchable probation he said: "No." She asked the police records clerk to check that; the clerk later confirmed (after the car search was completed) that the minor was actually on searchable probation.
Although the officers did not so testify, Officer Laffranchini's videocam recording also shows (at around 35 seconds into the encounter) that when asked for identification the minor said he had none on him.
Officer Laffranchini asked the driver if there was anything illegal in the car; the driver said there was not. The officer asked: "Do you mind if we check?" The driver said she did not. The officer's partner got the driver out of the car, and Officer Laffranchini got the minor out; she placed him in the backseat of the patrol vehicle, but did not arrest him at that point and informed him he was not in trouble.
While Officer Laffranchini's partner searched the car, she stood by with the driver, D. D. said she was cold, so the officer escorted her to the back seat of the patrol car where she could get warm. D. was not handcuffed or placed under arrest at that time.
Just before Officer Laffranchini closed the door to the patrol car, her partner alerted her by saying "12020," "which means gun," so the officer quickly handcuffed D. and took her out of the patrol car. The gun was found in the car's center console, between the driver and passenger seats.
Later, Officer Laffranchini spoke to the minor. He said the gun in the car was his; he had found it at a park a month ago. He said it was loaded with five rounds. He also said D. was his girlfriend.
D. said she had just gotten the car, and it was not in her name yet. The minor did not say the car was his. The car was ultimately towed.
The officer's videocam recording was played, and the officer stated that it fairly and accurately depicted the day's events.
Officer Apolonio Garcia Rangel, Officer Laffranchini's partner on the evening of April 13, 2017, testified that after they had conducted the traffic stop, he approached the driver and asked for her driver's license. Instead, she provided a California ID.
Officer Garcia Rangel corroborated his partner's testimony that she asked D. for permission to search, then stated that D. "was okay with the search proceeding." After he removed D. from the vehicle, D. asked him, "does she have to search?" He said yes.
As the videocam recordings show, Officer Garcia Rangel actually performed the search, while Officer Laffranchini monitored the minor as he sat in the back seat of the patrol car.
Officer Garcia Rangel testified that the car was "towable" due to its expired registration, citing Vehicle Code section 22651, subdivision (o)(1)(a). Under Stockton Police Department policy, whenever a car is to be towed, an inventory search is performed before towing.
On cross-examination, the officer stated: "According to California Vehicle Code Section 22651(o)(1)(a), a vehicle can be towed, will be towed." (Italics added.) In his reply brief, the minor points to the last three words as proof that the officer misunderstood the law (and therefore his authority to search the car without consent) because he thought the statute mandated towing, rather than merely authorizing it. Even assuming the minor may make this argument for the first time in his reply brief, it is unpersuasive. The officer's original explanation showed that he understood the car was merely "towable" at the officers' discretion. His statement that the car "will be towed" indicated that, applying the law together with department policy, towing was inevitable.
Officer Garcia Rangel found the gun in the car, a loaded Smith & Wesson .38 Special revolver, while performing an inventory search; he was not looking for anything illegal inside the car when he began the search. The gun was located in the center console, where it was accessible to the driver and the front passenger. D. later said that the gun did not belong to her or to the minor; she did not know whose it was.
D. said she had driven the car for about a month. In searching the car, Officer Garcia Rangel did not find indicia of ownership or occupancy, but did not go through every paper to see if D. was the registered owner.
The car was ultimately towed because its registration had expired and because D. did not have a driver's license.
The officer's videocam recording was played, and he testified that it was a fair and accurate depiction of the events.
Argument
The prosecutor argued: (1) The minor lacked standing to challenge a search of someone else's car. (2) Because of the expired registration and D.'s lack of a driver's license, the car was going to be inventoried prior to towing; therefore, the gun would inevitably have been discovered. (3) The search was valid because the minor was on searchable probation. (4) The search was valid because D. consented. When she then said, "Do I have to?" (as the prosecutor heard her statement on the video), that could have meant only "do I have to get out of the car?"
The minor's counsel replied (citing no authority): (1) The People were estopped to raise lack of standing because they asserted the minor had a possessory interest in the item seized. (2) An inventory search cannot be done as a pretext search. (3) The search was not valid as a probation search because the officers did not know of the minor's search condition when they did the search.
Ruling
The juvenile court denied the motion to suppress without stating findings or reasons.
DISCUSSION
On review of a ruling denying a motion to suppress evidence, we view the facts most favorably to the respondent and uphold the lower court's factual findings if supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673; Watkins, supra, 170 Cal.App.4th at p. 1408.) Because the juvenile court made no express factual findings, we infer that it impliedly found whatever facts were necessary to its ruling. (See Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58 (Fladeboe).)
We decide independently whether the facts, viewed most favorably to the respondent, show that the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.) We may uphold the lower court's ruling if it was correct on any theory. (People v. Durant (2012) 205 Cal.App.4th 57, 62.)
On appeal, as below, the minor contends only that the car search was invalid because D. withdrew her consent before the search began. The minor's opening brief recites the People's other justifications for the search below, but does not argue against them.
The Attorney General argues the motion to suppress was properly denied not only on the basis of consent but on the other grounds raised below (except for the minor's probation search term, not known to the officers until after the fact). The minor responds to these points in his reply brief.
The parties used the term "standing" in the juvenile court. Our high court has noted, however, that the United States Supreme Court no longer uses that term in the Fourth Amendment context and has advised the California courts to avoid the term. (People v. Ayala (2000) 23 Cal.4th 225, 254, fn. 3 (Ayala).)
The Attorney General contends, as the People did below, that the minor cannot show he had a subjective expectation of privacy in the place searched or the thing seized that was objectively reasonable. (Ayala, supra, 23 Cal.4th at p. 255; People v. Jenkins (2000) 22 Cal.4th 900, 972 (Jenkins); see Rakas v. Illinois (1978) 439 U.S. 128, 130-131, fn. 1, 134 (Rakas).) A mere possessory interest in the item seized is not enough: the challenger must also have a reasonable expectation of privacy in the area searched. (United States v. Salvucci (1980) 448 U.S. 83, 93 (Salvucci).) The Attorney General asserts that the minor failed to show any such reasonable expectation of privacy; in his reply brief, the minor disagrees. We agree with the Attorney General.
The minor's rebuttal argument lacks merit. The minor cites Rakas, supra, 439 U.S. at page 148, for the proposition that "[a] passenger in a vehicle may challenge the seizure of evidence from the vehicle if he asserts a property or a possessory interest in the car or an interest in the property seized." But that is not what the decision holds. The minor appears to rely on the court's statement that the challengers "asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized." (Rakas, at p. 148.) But the court did not say the challengers would have been able to raise a Fourth Amendment claim if they had merely asserted any of those interests, without more. On the contrary, the court explained that the challengers' claims failed "since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy. [Citations.]" (Rakas, at pp. 148-149; see also Salvucci, supra, 448 U.S. at p. 93.)
The minor also cites to "439 U.S. at pp. 128-129," which is the Reporter of Decisions' Syllabus, not the court's opinion.
Similarly, the minor does not show he had a legitimate expectation of privacy in the center console of the car in which he was merely a passenger. He states that he placed the gun there to hide it from D., but since possessing the gun was prohibited under the terms of his probation, his subjective expectation of privacy (if any) was not objectively reasonable. (Cf. Ayala, supra, 23 Cal.4th at p. 255; Jenkins, supra, 22 Cal.4th at p. 972.) Indeed, he does not even acknowledge that objective reasonableness is essential to a legitimate expectation of privacy under the Fourth Amendment. Therefore, even if properly before us, the minor's claim of "standing" fails.
Consent
As below, the minor contends that the officers lacked valid consent to search the car because D. withdrew her consent before they began by asking whether they had to search. Even assuming the minor may raise this claim despite his failure to show a legitimate expectation of privacy in the area searched or the item seized, it is unpersuasive.
One exception to the warrant requirement for a search is consent, either from the owner of the property to be searched or a third party who possesses common authority over the premises. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181 .) If the officers reasonably believe the person giving consent has authority to do so, they may rely on that belief even though it turns out later that the person lacked actual authority to consent. (Id. at p. 186.) As the driver of the car, D. was at least apparently authorized to consent to its search, even if she proved not to be the registered owner or even to possess a driver's license, and the juvenile court impliedly found that the officers reasonably relied on D.'s apparent authority to consent. (Cf. Fladeboe, supra, 150 Cal.App.4th at p. 58.)
If a person who has consented to a warrantless search withdraws consent, either by words or acts, the search cannot be performed lawfully. (People v. Hamilton (1985) 168 Cal.App.3d 1058, 1067 (Hamilton).) To be effectual, however, withdrawal of consent must involve actions inconsistent with consent, and such actions must be " 'positive in nature.' [Citation.]" (Ibid.) Whatever D. actually said after giving consent did not meet that standard.
Despite Officer Garcia Rangel's testimony that D. asked if "she [Officer Laffranchini] had to search," it is not clear from the videocam recordings that that is so. It is not easy to make out what D. said at that point (occurring at around 1:40 to 1:50 on the first of the three recordings made by Officer Garcia Rangel's videocam) because she spoke softly and quickly, the recording also caught the simultaneous conversation between the minor and Officer Laffranchini on the car's passenger side, and there was ambient noise in the background. From what can be heard, the prosecutor's statement that it sounded as though D. simply said, "Do I have to?" is a plausible interpretation of her remark. If that was what she said, it might have meant only, as the prosecutor said, that she was asking if she had to get out of the car.
The same part of the incident occurs at around 2:10 to 2:20 on the recording made by Officer Laffranchini's bodycam, but D.'s remarks cannot be heard on that recording.
But even if D. did ask whether the officers had to search, that would not constitute action both inconsistent with consent and positive in nature, as required to prove withdrawal of consent. (Hamilton, supra, 168 Cal.App.3d at p. 1067.) In Hamilton, on which the minor relies, the police believed the defendant, who had an outstanding arrest warrant, could be found at a particular apartment. The apartment's lessee opened the front door to the officers' knock, but then ran ahead of one of the officers to try to close a partly open bedroom door before the officer could discover the defendant inside the bedroom. (Id. at p. 1061.) The appellate court found that the lessee's act was "direct, positive and capable of only one interpretation. She did not want the officers to enter the bedroom." (Id. at p. 1068.) Thus, if she consented to the search by opening the front door, she unmistakably withdrew that consent by trying to keep the officers out of the bedroom. (Ibid.)
Here, by contrast, D. at most asked a question, and on receiving a positive answer did nothing further to show she had withdrawn consent to the search. Merely asking the question was not in itself " 'inconsistent with consent' " (Hamilton, supra, 168 Cal.App.3d at p. 1067), nor was it " 'positive in nature' " (ibid.). Even if D. might have preferred the officers not to search the car, she did not take deliberate action to frustrate the search, as in Hamilton. Rather, as in People v. Gurtenstein (1977) 69 Cal.App.3d 441, 451, and People v. Botos (1972) 27 Cal.App.3d 774, 779 (distinguished in Hamilton, supra, 168 Cal.App.3d at pp. 1067-1068), D. never ceased to cooperate with the officers.
So far as the minor contends that D. did not voluntarily consent to the search but merely submitted to the officers' authority, substantial evidence supports the juvenile court's implied contrary finding. Having viewed the bodycam videos, we find them consistent with the officers' testimony as to D.'s cooperation and the People's description of the officers' conduct (in their opposition to the motion to suppress) as "non-confrontational and friendly" toward D. and the minor.
The minor wrongly relies on Bumper v. North Carolina (1968) 391 U.S. 543 . There, officers obtained consent to a warrantless search by falsely claiming to have a warrant. (Id. at pp. 548-549.) The Supreme Court held that by claiming a warrant, the officer "announce[d] in effect that the occupant ha[d] no right to resist the search. The situation [was] instinct with coercion . . . . Where there is coercion there cannot be consent." (Id. at p. 550.) No such coercive claim was made here.
The minor has failed to show consent to the search was withdrawn or coerced.
Inventory search
We also conclude the search was justifiable as an inventory search of the car prior to its towing, regardless of whether consent to the search was given.
As noted, Vehicle Code section 22651, subdivision (o)(1)(a), authorizes police officers to impound a car whose registration is more than six months out of date. Here, the officers made a traffic stop of the car in which the minor was riding because they discovered that its registration had been expired for that long. (Contrary to the minor's assertion below, which he does not renew on appeal, the stop was not pretextual: the officers did not know of or have any reason to suspect any other wrongdoing by the occupants.) And once they spoke to the occupants, they discovered another legal justification for impoundment: neither D. nor the minor could produce a driver's license, which meant that no one in the car was lawfully permitted to drive it. (Veh. Code, § 12500, subd. (a).)
Furthermore, as Officer Garcia Rangel testified with respect to the Stockton Police Department, " ' "[w]hen vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody [citation]; the protection of the police against claims or disputes over lost or stolen property [citation]; and the protection of the police from potential danger [citation]. The practice has been viewed as essential to respond to incidents of theft or vandalism. [Citations.]" ' [Citations.]" (People v. Benites (1992) 9 Cal.App.4th 309, 322 (Benites), quoting People v. Burch (1986) 188 Cal.App.3d 172, 177-178, which in turn quoted South Dakota v. Opperman (1976) 428 U.S. 364, 369 .)
The inventory search is "now a well-defined exception to the warrant requirement of the Fourth Amendment." (Colorado v. Bertine (1987) 479 U.S. 367, 371 (Bertine).) Where it is not shown that the police, while following standardized procedures for inventorying an impounded car, "were acting in bad faith or for the sole purpose of investigation" (Benites, supra, 9 Cal.App.4th at p. 323), the search will be justified by "the governmental interest of securing property for which the police were responsible." (Ibid., citing Bertine, supra, 479 U.S. at pp. 372-373.)
The fact that police department regulations might give an officer discretion to choose between impounding a vehicle and taking some other step to secure it does not make it a Fourth Amendment violation for the officer to choose impoundment and an inventory search. (Bertine, supra, 479 U.S. at pp. 375-376; Benites, supra, 9 Cal.App.4th at pp. 324-325, 327.)
The minor does not give any persuasive reason why the inventory search in this case was invalid under the well-settled law we have set out above. He asserts that impoundment was not justified under the "community caretaking doctrine" (cf. Miranda v. City of Cornelius (9th Cir. 2005) 429 F.3d 858, 864), but he does not show that this doctrine is the only lawful basis for impoundment. And since impoundment and the accompanying inventory search were authorized by statute and departmental procedure, it does not matter whether they were mandatory, contrary to the minor's assertion. (Bertine, supra, 479 U.S. at pp. 375-376; Benites, supra, 9 Cal.App.4th at pp. 324-325, 327.)
For all of the above reasons, the minor's attack on the order denying his motion to suppress evidence fails.
DISPOSITION
The order denying the motion to suppress evidence is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
HOCH, J. /s/_________
RENNER, J.