Opinion
H044856
09-20-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL RUSSELL CISNEROS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1755314)
The police saw Defendant Daniel Russell Cisneros trying to enter a locked pickup truck with a metal tool at 3:00 a.m. They questioned him, found an outstanding arrest warrant, and searched him incident to arrest. The police found methamphetamine in his pocket and a round of nine-millimeter ammunition in his truck. Cisneros pleaded no contest to possession of methamphetamine and possession of ammunition by a prohibited person. The trial court granted a three-year term of probation with 154 days in county jail.
Cisneros appeals from the denial of his motion to suppress the evidence. He does not challenge the search of his person, but he contends the search of his truck violated the Fourth Amendment. He contends we should remand to the trial court to determine whether the testifying police officer perjured himself at a hearing on the motion to suppress. We conclude the claims are without merit and we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The prosecution charged Cisneros with two counts: Count 1—possession of methamphetamine for sale (Health & Saf. Code, § 11378); and count 2—misdemeanor possession of ammunition by a prohibited person (Pen. Code, § 30305, subd. (a)(1)). Cisneros filed a motion to suppress evidence which was denied by the trial court following a hearing. The parties thereafter entered into a plea agreement whereby the prosecution moved to dismiss count 1 and amended the information to add count 3, misdemeanor possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Cisneros pleaded no contest to counts 2 and 3, and the trial court granted the prosecution's motion to dismiss count 1. The trial court suspended imposition of sentence and granted a three-year term of probation including 154 days in county jail.
B. Facts of the Search and Arrest
1. Testimony of Officer Montesano
At a hearing on the motion to suppress, San Jose Police Officer Daniel Montesano testified as follows. He and another officer were driving in a marked patrol car at around 3:00 a.m. when they saw Cisneros trying to get into a pickup truck. Cisneros appeared to be using a skinny metallic tool to break into the truck, so Officer Montesano suspected he was attempting to burglarize it. The officers determined the registration on the truck had been expired for six months and one day.
The officers approached Cisneros and questioned him from within their patrol car. Cisneros told the officers he had locked his keys in the truck. He said it was his truck but he had not yet had a chance to register it in his name. He said there was a bill of sale inside the truck.
The officers exited their vehicle and approached Cisneros, whereupon he began removing objects from his pockets and placing them on the hood of the truck. He told them he had an outstanding warrant for his arrest. A records check confirmed that Cisneros had an outstanding arrest warrant. The officers arrested Cisneros, handcuffed him, and searched him. On his person, they found multiple bags of methamphetamine, empty plastic bags, and $140 in cash.
The parties stipulated that Cisneros had outstanding arrest warrants for trespass and petty theft at the time of the search.
The officers placed Cisneros in the patrol car and summoned a tow truck to impound the vehicle. After the tow truck arrived and unlocked the pickup truck, Officer Montesano conducted a search of the vehicle. On the front seat, he found a backpack containing a single unfired nine-millimeter round of ammunition. Officer Montesano testified that he searched the truck solely as an inventory search.
2. Video Camera Footage
At the hearing, the trial court admitted several clips of video footage from Officer Montesano's body camera and another camera inside the patrol car. Audio from the video recorded the voices of the officers during the encounter. The video and audio showed that the police directed Cisneros to put his hands behind his back and Officer Montesano conducted a patdown search for weapons before they learned of the outstanding arrest warrant.
The video clips are not part of the record on appeal, but the trial court admitted transcripts of the clips, and Officer Montesano testified to their contents. --------
The clips also contained audio of Officer Montesano and his partner Officer Guerra discussing whether to search the vehicle after placing Cisneros in the patrol car. When Officer Guerra asked Officer Montesano what he planned to do with the truck, Officer Montesano replied, "Tow the car, inventory it. So the car is basically mine, if I want to search through all of it?" Officer Guerra then stated, "Okay, let's do it," and added, "Push everything to the max."
The audio also recorded Officer Montesano discussing the search with a third, unidentified officer. Officer Montesano asked the other officer, "You think we have enough for sales[?]" The other officer replied, "It depends on what you can find in his truck." Officer Montesano responded, "That's true."
II. DISCUSSION
Cisneros does not challenge the search of his person but he contends the search of his vehicle violated the Fourth Amendment. He further contends we should remand to the trial court to determine whether Officer Montesano perjured himself in his testimony at the hearing for the motion to suppress. The Attorney General contends the search of the truck was valid because the police had probable cause to believe it contained evidence of a crime. As to the claim of perjury, the Attorney General contends the trial court necessarily credited Officer Montesano's testimony in denying the motion to suppress. For the reasons below, we conclude the search was valid and no remand is necessary.
A. Procedural Background
Cisneros filed a written motion to suppress the fruits of the search under Penal Code section 1538.5. At the hearing, Officer Montesano testified as set forth above. The parties stipulated that the police had no search warrant but that Cisneros had an outstanding arrest warrant.
Cisneros argued that the initial detention was unconstitutional because the police lacked reasonable suspicion. He urged the trial court to reject Officer Montesano's testimony because the body camera video contradicted the officer's version of events. However, Cisneros conceded that the police validly search his person as a search incident to arrest after they discovered the outstanding arrest warrant.
The prosecution argued that the police had reasonable suspicion to detain Cisneros based on the circumstances of the encounter, and the prosecution claimed the body camera video corroborated Officer Montesano's testimony. Cisneros responded that the trial court should grant the motion to suppress notwithstanding the arrest warrant because Officer Montesano testified falsely about the circumstances surrounding the initial stop. As to the ammunition, Cisneros contended the evidence should be suppressed because the inventory search was pretextual. Defense counsel characterized the decision to impound the truck as "a ruse to gather evidence of criminal activity."
The trial court denied the motion to suppress. As to the initial stop, the court found the police had reasonable suspicion to briefly detain and question Cisneros about why he was attempting to enter the truck. The court then ruled that the search of his person was valid because the police had discovered the arrest warrant and conducted a search incident to the arrest. As to the search of the truck, the court rejected the assertion that it was a valid inventory search because the audio from the body camera video showed the officers searched the truck for law enforcement purposes, not to inventory its contents. Nonetheless, the court found the search of the truck constitutional because the police, having found drugs on Cisneros himself, thereby had probable cause to believe more illegal drugs might be found inside his vehicle.
B. Legal Principles
"The Fourth Amendment provides that '[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .' (U.S. Const., 4th Amend.) This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and thereby applies to the states. [Citation.]" (People v. Espino (2016) 247 Cal.App.4th 746, 755 (Espino).)
"[A] police officer who makes a lawful arrest may conduct a warrantless search of the arrestee's person and the area 'within his immediate control.' [Citation.]" (Davis v. U.S. (2011) 564 U.S. 229, 232.) As to an arrestee's vehicle, the United States Supreme Court has recognized two conditions permitting a search of the vehicle incident to the arrest: "[W]hen the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search," or "when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' " (Arizona v. Gant (2009) 556 U.S. 332, 343 (Gant).)
"In response to a motion to suppress evidence seized in a warrantless search, the prosecution bears the burden to prove police conducted the search under a valid exception to the Fourth Amendment's warrant requirement." (Espino, supra, 247 Cal.App.4th at p. 756.) "In reviewing a lower court's ruling, we are bound by factual findings supported by substantial evidence. [Citation.] The ultimate question of whether a search was unreasonable is a question of law we review de novo." (Id. at p. 755.)
C. The Police Had Probable Cause to Search the Truck Incident to the Arrest
Relying on Gant, supra, the trial court concluded the search of the truck was lawful because the police had probable cause to believe more drugs might be found in the truck. The court reasoned that because the police had discovered multiple bags of methamphetamine on Cisneros, "[t]he possibility that more drugs are contained in the car is not an unreasonable inference." We find the trial court's reasoning persuasive.
Cisneros challenges the trial court's conclusion on the ground that the exception set forth in Gant only applies to a vehicle in which the arrestee was "a recent occupant." (See Gant, supra, 556 U.S. at p. 343.) Cisneros argues that Gant does not apply here because the police never witnessed him occupying the vehicle. As the Attorney General points out, however, Cisneros told the police the truck belonged to him and that he had locked his keys inside it. The police could reasonably infer that he was therefore a recent occupant of the vehicle. Cisneros argues that it is not reasonable to infer he had recently occupied his truck based solely on the fact that he was locked out of it. But Gant does not create some strict temporal limit; it hinges on the logic that the occupancy might have been recent enough to create probable cause to believe the vehicle contains evidence of the crime for which the occupant was arrested. In this case, the police could reasonably infer Cisneros might have occupied the truck recently enough to have stored illegal contraband in it.
For the reasons above, we conclude the trial court did not err in finding the police had probable cause to search the truck. The finding is supported by substantial evidence, and it is reasonable to infer Cisneros had occupied the truck recently enough to place drugs in it. Furthermore, although Cisneros does not challenge the search of his person on appeal, the facts objectively available to the officers—i.e., a person attempting to access a locked vehicle at 3:00 a.m.—presented reasonable suspicion for the initial stop. Even assuming the police had no reasonable suspicion for the initial stop of Cisneros, the subsequent search of his person was authorized as a search incident to arrest following the discovery of the arrest warrant. (Utah v. Strieff (2016) 136 S.Ct. 2056, 2059 [discovery of a valid, pre-existing, and untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest].) Having found drugs on his person, the police then had probable cause to search the vehicle. Accordingly, we conclude the vehicle search was authorized under Gant, supra.
D. No Remand Is Required
Cisneros contends we should remand to the trial court to determine whether the police committed flagrant misconduct in the form of perjury by Officer Montesano at the hearing on the motion to suppress. For this proposition, Cisneros relies on People v. Rodriguez (2006) 143 Cal.App.4th 1137 (Rodriguez). In Rodriguez, the police ostensibly stopped the defendant for a burned out brake light, whereupon they conducted a records check and discovered an outstanding warrant. The Court of Appeal reversed the denial of the defendant's motion to suppress the fruits of the subsequent search. At the hearing on the motion to suppress, the defendant had presented evidence his brake lights were operational, and the police had never issued a citation for the ostensible violation. The Court of Appeal found "credible evidence the officers may have invented a justification for the traffic stop in order to have an excuse to run warrant checks on the driver and passenger." (Id. at p. 1143.) Concluding that "a material question of fact exists as to the legality of the stop," the Court of Appeal remanded to the trial court to determine whether the police "cooked up a reason" to stop the defendant. (Id. at pp. 1143-1144.) (Cf. Utah v. Strieff, supra, 136 S.Ct. at p. 2063 [attenuation doctrine applicable where officer did not commit flagrant misconduct].)
We find no cause for remand under Rodriguez. The Court of Appeal in that case remanded to the trial court to make the required factual determinations as to the police officer's credibility. Here, however, Cisneros has already asserted his Rodriguez claim in the trial court. Citing Rodriguez, Cisneros argued below that suppression was required because Officer Montesano's "testimony about the circumstances surrounding the detention and whether there was a detention at all was false." As the Attorney General points out, by rejecting this claim the trial court implicitly credited Officer Montesano's testimony concerning the grounds for the initial stop.
It is true that the trial court stated it was not making a determination of Officer Montesano's credibility. But the court made this statement in the context of expressing its "concern about the inventory search," not the circumstances of the initial stop. The court made clear that it found credible evidence of facts supporting reasonable suspicion for the initial stop "based on what the officers are seeing at 3:00 o'clock in the morning, someone trying to gain access to a car." As set forth above, we conclude this finding was supported by substantial evidence.
Accordingly, we perceive no need for a remand to the trial court to make a credibility determination it has already made. We conclude this claim is without merit. For the reasons above, we will affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.