Opinion
B220777
08-10-2011
THE PEOPLE, Plaintiff and Respondent, v. SANDRA JEAN JONES, Defendant and Appellant.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. PA065180)
APPEAL from a judgment of the Superior Court of Los Angeles County. Burt Pines, Judge. Affirmed.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Sandra Jean Jones, appeals from her conviction for cocaine possession and two prior prison term findings. (Health & Saf. Code, § 11350, subd. (a); Pen. Code, § 667.5, subd. (a).) After the denial of her Penal Code section 1538.5 suppression of evidence motion, defendant pled nolo contendere and admitted the truth of the two special allegations. On appeal, she challenges the correctness of the trial court's ruling on the suppression of evidence motion. We affirm.
Officer Marco Gaiser testified he saw defendant's Toyota Corolla at 2 a.m. on August 9, 2009, parked near Memory Park Avenue on Parthenia Place in a red zone. When asked to describe the place where defendant had parked the Toyota, Officer Gaiser testified, "It's a high gang and narcotics area." Defendant was seated in the driver's seat and a passenger was also present. In the center console was an open container of alcohol. There was condensation around the bottle of alcohol. When Officer Gaiser approached the Toyota, he could smell alcohol. Officer Gaiser did not know to whom the alcohol belonged and he wished to investigate that issue. Officer Gaiser thought that the crime of driving under the influence of alcohol was committed if the driver was in complete control of the vehicle.
Officer Gaiser asked defendant if she had been drinking. She responded, "No." Officer Gaiser also asked defendant if she was on probation or parole and she responded in the negative. Officer Gaiser asked defendant to get out of the Toyota so he could conduct a driving under the influence investigation. Officer Gaiser handcuffed defendant as she alighted from her Toyota. Officer Gaiser explained why he handcuffed defendant: "Because depending on a D. U. I. investigation, we handcuff just in case of - - they either decide - - for their safety and our safety, and she was being detained." When asked why safety was an issue, Officer Gaiser testified, "Because at the time, I didn't know how under the influence she was or if she was at all, and suspects can turn on you or start a fight." Officer Gaiser, who was assigned to handle gang and narcotics cases, also stated the location impacted his decision to handcuff defendant. Officer Gaiser said he routinely handcuffed driving under the influence of alcohol suspects when they were brought out of a car. Officer Gaiser explained why he routinely handcuffed driving under the influence suspects, "Because we don't know if they're under the influence of anything else, like P.C.P. or anything." Officer Gaiser stated he did not routinely handcuff persons being issued a citation for a parking violation.
Officer Gaiser described what he did in terms of investigating the possibility defendant was under the influence, "Just looked - - just looked at her demeanor, what she was doing, and the things she was doing, symptoms." Defendant was asked if she had anything on her and she responded: "No." Defendant was asked, "Do you mind if we check?" Defendant responded either "No" or "You can check." Defendant was asked whether she could be searched and she responded, "Yes" or "Go ahead." The consent was secured as defendant was walked from the car door to the curb but while she was handcuffed. At the time he secured the consent to search, all Officer Gaiser knew for certain was that the Toyota was parked in a red zone and there was an open container in her car. He had not yet ascertained the state of defendant's sobriety.
Officer Gaiser told defendant a female officer would be summoned to conduct the search. Defendant responded, "That's fine." While awaiting the arrival of the female officer, Officer Gaiser filled out a field interview card. Officer Gaiser had not ruled out the possibility defendant was intoxicated while he was filling out the field interview card. While seeking information to write on the field interview card, Officer Gaiser spoke with defendant. Officer Gaiser concluded defendant was not under the influence of alcohol. It took 5 to 10 minutes before Officer Gaiser concluded defendant was not under the influence of alcohol. Officer Gaiser did not perform any field sobriety tests on defendant. Officer Gaiser was also looked in and around the Toyota to verify if defendant had dropped anything.
During this time frame, defendant remained handcuffed. Officer Gaiser did not remove the handcuffs because he was awaiting the arrival of Officer Caressa Andreas who would conduct the search. Officer Gaiser was not permitted to search defendant because she is a woman. Officer Gaiser kept defendant in handcuffs in order for her to be searched. By the time Officer Andreas arrived, it was determined that the passenger in the Toyota was under the influence of alcohol. Officer Andreas testified she arrived five minutes after receiving the radio request to conduct the search.
Officer Andreas asked defendant for permission to search. In response, according to Officer Gaiser, defendant, said, "Yes." Officer Andreas described the consent provided buy defendant slightly differently: "I approached [defendant], asked her if she had anything on her or if I could search her, and she said: "No. Go ahead." Officer Andreas had previously talked to defendant. Officer Andreas described their rapport during those prior encounters as good. During the search, defendant and Officer Andreas engaged in small talk. Officer Andreas found a bindle of rock cocaine in the center line of defendant's panties.
It was further determined there was beer in the bottle in the console. Prior to the seizure of drugs on defendant's person, Officer Gaiser never saw her in possession of any drugs. Officer Gaiser testified 25 minutes elapsed between the initiation of the contact with defendant and the arrival of Office Andreas. When Officer Gaiser requested consent to search and summoned Officer Andreas, he was conducting his investigation. Officer Gaiser acknowledged the encounter could be characterized as a "fishing expedition" type of search.
First, because Officer Gaiser had probable cause to arrest defendant, he possessed the constitutional authority to search her or direct another person to do so. Officer Gaiser saw there was an open container in the Toyota and smelled alcohol as he walked up to the car which was parked in a red zone. Vehicle Code section 23223, subdivision (a) prohibits a driver from possessing an open bottle containing alcohol on a highway. A violation of Vehicle Code section 23223, subdivision (a) is an infraction. (Veh. Code, § 40000.1 et seq.) As Officer Gaiser saw the open container in the console, viewed objectively, there was probable cause to believe defendant was violating Vehicle Code section 23223, subdivision (a). (People v. Monroe (1993) 12 Cal.App.4th 1174, 1182, fn. 4 [probable cause to arrest when the officer observed an open container on the floor of the car in front of the defendant]; People v. McCloskey (1990) 226 Cal.App.3d Supp. 5, 10 [conviction upheld where an open beer container was in the console between the defendant and a front seat passenger]; People v. Lopez (1987) 197 Cal.App.3d 93, 99 [highway for purposes of Veh. Code, § 23223 includes a parking place adjoining a paved roadway.)
Vehicle Code section 23223 states in its entirety: "(a) No driver shall have in his or her possession, while in a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle, containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed. [¶] (b) No passenger shall have in his or her possession, while in a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened or a seal broken, or the contents of which have been partially removed."
An arrest for an infraction is reasonable under the Fourth Amendment. In Atwater v. City of Lago Vista (2001) 532 U.S. 318, 323-324, the plaintiff in a federal civil rights action was stopped while driving her car for a seat belt violation. The plaintiff was arrested. She filed suit pursuant to title 42 United States Code section 1983 alleging she was subject to an unreasonable seizure. (Id. at p. 325) After reviewing its search and seizure jurisprudence, the United States Supreme Court held: "Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause 'applie[s] to all arrests, without the need to "balance" the interests and circumstances involved in particular situations.' Dunaway v. New York [(1979)] 442 U.S. 200, 208. If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." (Atwater v. City of Lago Vista, supra, 532 U.S. at p. 354; see Brendlin v. California (2007) 551 U.S. 249, 263, fn. 7; Maryland v. Pringle (2003) 540 U.S. 366, 370.) The fact that a state or federal statute does not permit an arrest is irrelevant to the Fourth Amendment reasonableness calculus. (Virginia v. Moore (2008) 553 U.S. 164, 167, 169, fn. 2, 172 [defendant arrested in violation of a Virginia statute that required only a summons be issued for driving with a suspended license]; Whren v. United States (1996) 517 U.S. 806, 815 [District of Columbia regulation limiting authority of unmarked police car to make a stop irrelevant to Fourth Amendment reasonableness issue]; Cooper v. State of California (1967) 386 U.S. 58, 60-61 [state forfeiture law irrelevant as to whether the car search was reasonable].) Also, our Supreme Court, citing Atwater along with federal authority, held in the context of an arrest for a fine only offense, Vehicle Code section 40302, subdivision (a), "We conclude, in accordance with United States Supreme Court precedent, that custodial arrests for fine-only offenses do not violate the Fourth Amendment and that compliance with state arrest procedures is not a component of the federal constitutional inquiry." (People v. McKay (2002) 27 Cal.4th 601, 605; see People v. Hardacre (2004) 116 Cal.App.4th 1292, 1301.)
Thus, Officer Gaiser could lawfully arrest defendant on the open container charge and take her to the police station for booking. Since defendant was subject to arrest, she could be lawfully searched. (United States v. Robinson (1973) 414 U.S. 218, 225; People v. Diaz (2011) 51 Cal.4th 84, 94.) The fact that she was searched before she was formally arrested is irrelevant. (Rawlings v. Kentucky (1980) 448 U.S. 98, 111; In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239; People v. Avila (1997) 58 Cal.App.4th 1069, 1077.)
In People v. Gomez (2004) 117 Cal.App.4th 531, 534-536, 538-540, the defendant was stopped at 4:50 p.m. for a traffic violation, failure to wear a seatbelt, and he refused to consent to a search of his car. The defendant was then "detained" as part of an ongoing narcotics investigation while the detectives awaited the arrival of police dog trained to alert to controlled substances. The narcotics dog did not arrive at the scene of the "detention" until 6:05 p.m. (Id. at pp. 535-536.) The Court of Appeal, citing among other cases, Atwater and McKay, addressed the effect of the unreasonably prolonged 1 hour, 15 minute detention: "[I]t is irrelevant that a seatbelt violation typically would result in a brief detention for purposes of issuing a citation. [¶] Our sole concern is whether defendant's Fourth Amendment rights were violated by being subjected to a de facto arrest that originated with the traffic stop. 'Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime. [Citation.]' (People v. Kraft (2000) 23 Cal.4th 978, 1037.) It is undisputed [Detective] Floren had probable cause to believe defendant violated a traffic law. He thus had probable cause to arrest defendant on that basis. That probable cause did not evaporate simply because [Detective] Floren also detained defendant for purposes relating to the narcotics investigation." (People v. Gomez, supra, 117 Cal.App.4th at p. 539.) The same is true here. The fact that Officer Gaiser was awaiting Officer Andreas's arrival does not militate against the fact that it was objectively reasonable for defendant to be arrested. Incident to the arrest, she could be searched.
Now, Officer Gaiser never testified he intended to effect a full blown arrest of defendant. Nor did Officer Gaiser express a belief that he could, consistent with the Fourth Amendment, search defendant. His state of mind, as evidenced by his conduct, was to secure a consent and advise defendant that a female officer would summoned to actually conduct the search. Officer Gaiser's subjective intent or knowledge of the law is irrelevant: "Fourth Amendment reasonableness 'is predominantly an objective inquiry.' [City of Indianapolis v.] Edmond [(2000) 531 U.S. 32,] 47. We ask whether 'the circumstances, viewed objectively, justify [the challenged] action.' Scott v. United States (1978) 436 U.S. 128, 138. If so, that action was reasonable 'whatever the subjective intent' motivating the relevant officials. Whren v. United States, [supra,] 517 U.S. [at p.] 814. This approach recognizes that the Fourth Amendment regulates conduct rather than thoughts, Bond v. United States [(2000)] 529 U.S. 334, 338, [f]n. 2; and it promotes evenhanded, uniform enforcement of the law, Devenpeck v. Alford [(2004)] 543 U.S. 146, 153-154." (Ashcroft v. al-Kidd (2011) 563 U.S. _, _ [131 S.Ct. 2074, 2080].) In Whren v. United States, supra, 517 U.S. at page 813, citing Scott v. United States (1978) 436 U.S. 128, 138, the Supreme Court explained: "'[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.' [Citation.]"
The United States Supreme Court has repeatedly held that an officer's state of mind, motive (ulterior or otherwise), subjective intent, mental state, other than in the context of an inventory or administrative search, is irrelevant in determining reasonableness within the meaning of the Fourth Amendment. (Kentucky v. King (2011) 563 U.S. _, __ [131 S.Ct. 1849, 1859] [Kentucky Supreme Court's formulation of whether searching officers acted on bad faith inconsistent with objective standard]; Brigham City v. Stuart (2006) 547 U.S. 398, 404-405 [the fact the officers' primary motivation in entering the accused's home was to make an arrest and seize evidence, rather than quell a domestic disturbance, is irrelevant]; Devenpeck v. Alford, supra, 543 U.S. 146, 153 [the officer's stated reason (subjective justification) for an arrest is irrelevant; the stated reason for the seizure need not be even closely related to the facts which permit a valid arrest]; United States v. Knights (2001) 534 U.S. 112, 122 [official purpose for a parole search is irrelevant as long as there is reasonable suspicion a parolee has violated a condition of his or her release]; Ohio v. Robinette (1996) 519 U.S. 33, 38-39 [the fact that an officer had subjectively decided not to issue a citation did not preclude ordering the defendant to get out of the car].) Our Supreme Court has issued similar decisions. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 144-145 [fact that an officer had subjectively determined not to stop the accused's car because it was stolen is irrelevant when another ground existed]; People v. Lomax (2010) 49 Cal.4th 530, 564 ["If there is a legitimate reason for the stop, the subjective motivation of the officers is irrelevant."]; People v. Carrington (2009) 47 Cal.4th 145, 168 [officer's ulterior motives irrelevant]; People v. Sanders (2003) 31 Cal.4th 318, 334 ["validity of a search does not turn on 'the actual motivations of individual officers.'"].) In other words, Officer Gaiser's potential misunderstandings of his constitutional authority in this as other cases is irrelevant so long as the seizure of defendant was constitutionally reasonable. (U.S. v. Mariscal (9th Cir. 2002) 285 F.3d 1127, 1130; In re Justin K. (2002) 98 Cal.App.4th 695, 700.) Thus, Officer Gaiser's decision to secure a consent and await a search by Officer Andreas does not render the search constitutionally unreasonable.
One last comment is in order concerning Knowles v. Iowa (1998) 525 U.S. 113, 116-118. Knowles involved a statute which permitted a "full" search of a car incident to the issuance of a traffic citation. Knowles did not involve the issue here—a search incident to a constitutionally valid arrest. (People v. McKay, supra, 27 Cal.4th at p. 613, fn. 6; In re Arturo D. (2002) 27 Cal.4th 60, 75-76.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. I concur: KRIEGLER, J. ARMSTRONG, J.
I respectfully dissent.
This case presents what at first blush appears to be a novel issue in the jurisprudence of search and seizure law: Does probable cause to arrest, untethered from an actual custodial arrest, constitute an exception to the warrant requirement of the Fourth Amendment? The trial court answered this question in the affirmative. However, in Knowles v. Iowa (1998) 525 U.S. 113, the Supreme Court held that there is no "search incident to citation" exception to the warrant requirement in a case where there was probable cause to arrest. I believe that the analysis employed by the Supreme Court in Knowles is inconsistent with the trial court's ruling in this case.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution presented the following evidence at the hearing on defendant's motion to suppress: In the early morning hours of August 9, 2009, Los Angeles Police Officer Marco Gaiser and his partner were on duty in North Hills when they spotted a car parked in a red zone. As Officer Gaiser approached the vehicle to issue a red zone citation, he saw an open beer bottle in the center console. Officer Gaiser asked defendant, who was sitting in the driver's seat, whether she had been drinking; she answered in the negative. The officer asked defendant to step out of the vehicle and immediately handcuffed her as part of his DUI investigation. Once defendant was outside the vehicle, Officer Gaiser no longer smelled alcohol and, after conducting a brief DUI investigation, he determined that defendant was not under the influence.
As described by the officer, that investigation included observing defendant's demeanor to see if she was sweating or slurring her words, or if her eyes exhibited signs of intoxication.
While Officer Gaiser interviewed defendant, his partner interviewed the car's passenger, and determined that she had been drinking.
While investigating the open container violation, Officer Gaiser asked defendant if she had anything "on her," to which she responded "no." He then asked whether he could search her person, and she consented. Officer Gaiser summoned a female police officer, Caressa Andreas, to the scene.
When Officer Andreas arrived, Officer Gaiser had not yet issued defendant a ticket. He testified that, during the wait for Officer Andreas, he "was still getting [defendant's] information and all that stuff. And prior to [Officer Andreas's arrival], we were still - pretty much waiting for the search, and then if we didn't find anything, then we'd issue a citation. She was still detained for a citation." The officer agreed with the trial court that he had "kept her in handcuffs in order for her to be searched."
Officer Andreas searched defendant and found a small paper bindle in her underwear; the bindle contained a substance resembling rock cocaine. Defendant was arrested and charged with possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a). As a result of a scuffle at the police station, she was also charged with the misdemeanor offense of resisting a police officer, in violation of Penal Code section 148, subdivision (a)(1).
Defendant moved to suppress the evidence recovered during the roadside search of her person. The People maintained that the search comported with the Fourth Amendment because defendant had given her consent. The defense argued that defendant's consent was not voluntary as she was handcuffed at the time, the detention was unreasonably prolonged, rendering it a de facto arrest, and the police had no probable cause to search her.
The trial court requested that the parties brief the applicability of two recent appellate cases, In re Antonio B. (2008) 166 Cal.App.4th 435 and People v. Stier (2008) 168 Cal.App.4th 21. The facts of the latter case were as follows: "Two police officers stopped a truck for violating the Vehicle Code requirements for mud flaps and to investigate whether the backseat passenger was wearing a seatbelt. Before the stop, the officers had been informed by Drug Enforcement Administration (DEA) agents the vehicle had been involved in a narcotics transaction. After one of the officers found narcotics during a consensual search of the front seat passenger, the other officer ordered the driver to get out of the truck. Because of the driver's height, the officer handcuffed the driver and then obtained the driver's consent to be searched. The officer discovered a large amount of methamphetamine in the right front pocket of the driver's jeans. The primary question presented in th[e] appeal [was] whether the methamphetamine evidence should have been suppressed." (People v. Stier, supra, 168 Cal.App.4th at p. 23.) The Court of Appeal concluded that it should have been, "because the prosecution did not establish the handcuffing of the driver was reasonably necessary to the detention and, consequently, did not establish the driver's subsequent consent to be searched was voluntary." (Id. at pp. 23-24.) Similarly, the court in In re Antonio B., supra, ruled that the unnecessary use of handcuffs while detaining a juvenile transformed the valid detention into a de facto arrest, and vitiated the detainee's consent to be searched. (Id. at p. 441.)
At a continued hearing, the People conceded, pursuant to People v. Stier, supra, and In re Antonio B., supra, that defendant's initial detention turned into a de facto arrest. The People argued, however, that the open container of beer gave the officer probable cause to arrest defendant, which authorized the officer to conduct a search. The trial court agreed: "[T]he material facts are not in dispute here. [¶] . . . [¶] I believe . . . that the officers had probable cause to arrest the defendant for two separate violations of the Vehicle Code committed in the officer's presence; namely, parking in a red zone and having an open container of alcohol in a motor vehicle upon a highway." The court then ruled "that the detention of the defendant was a de facto arrest. When she was brought out of the car and handcuffed, I'm finding that was a de facto arrest." The court next found "that the officers had authority to search the defendant incident to the arrest" and "that the evidence in question was seized pursuant to a lawful search."
Defendant challenges that ruling on appeal.
STANDARD OF REVIEW
"In reviewing a ruling on a motion to suppress, we defer to the trial court's express and implied factual findings that are supported by substantial evidence. We then independently apply constitutional principles to the trial court's factual findings to determine the legality of the search or seizure. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Varghese (2008) 162 Cal.App.4th 1084, 1096.)" (People v. Stier, supra, 168 Cal.App.4th at p. 26.)
DISCUSSION
A warrantless search is presumed to be illegal; thus, it is the People's burden to justify the search by establishing that it fell within an exception to the warrant requirement. (United States v. Chadwick (1977) 433 U.S. 1, 6; People v. Rios (1976) 16 Cal.3d 351, 355.)
A search incident to a lawful arrest has long been recognized as an exception to the warrant requirement. (United States v. Robinson (1973) 414 U.S. 218, 230 (Robinson).)The historical basis for the exception was explained by then Associate Judge Cardozo of the New York Court of Appeals as follows: "The basic principle is this: Search of the person is unlawful when the seizure of the body is a trespass, and the purpose of the search is to discover grounds as yet unknown for arrest or accusation [citation]. Search of the person becomes lawful when grounds for arrest and accusation have been discovered, and the law is in the act of subjecting the body of the accused to its physical dominion." (People v. Chiagles (1923) 237 N.Y. 193, 197, quoted in Robinson, supra, at p. 232.) Thus, "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search . . . ." (Robinson, supra, 414 U.S. at p. 235.) "The justification or reason for the authority to search incident to a lawful arrest rests . . . on the need to disarm the suspect in order to take him into custody as [well as] the need to preserve evidence on his person for later use at trial." (Id. at p. 234.)
There is no question that Officer Gaiser had probable cause to arrest defendant. As the Supreme Court ruled in Atwater v. City of Lago Vista (2001) 532 U.S. 318, a police officer who witnesses the commission of a minor traffic violation has probable cause to arrest the offender, and if the offender is taken into custody, he or she may be searched incident to the arrest. (Accord People v. McKay (2002) 27 Cal.4th 601.) Of course, most traffic offenders are not arrested and taken into custody, but are issued a citation. The question presented in this case is this: If an officer witnesses a person commit a traffic violation, and chooses not to take the offender into custody but to issue a citation, is a search of the offender reasonable under the Fourth Amendment?
The Supreme Court considered this question in Knowles, supra, 525 U.S. 113. In that case, the defendant was stopped for speeding and issued a traffic citation. The officer then conducted a search of the defendant's car, and found illegal drugs. The defendant moved to suppress this evidence, arguing that the search did not come within the exception to warrantless searches recognized in Robinson because he had not been placed under arrest. The prosecution sought to justify the search as one "incident to arrest" under a statute which permitted the officer to either cite or arrest the defendant. Writing for the court, Chief Justice Rehnquist rejected this argument and invalidated the search: "[N]either of the[] underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case." (Id. at p. 117.) The court explained that the first rationale for a search incident to arrest did not apply because "[t]he threat to officer safety from issuing a traffic citation . . . is a good deal less than in the case of a custodial arrest" (ibid.), while the second rationale was absent because once the defendant "was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car." (Id. at p. 118.)
Like the prosecution in Knowles, the trial court in this case justified the search as one "incident to arrest" because the officer could have arrested the defendant pursuant to the authority of Atwater v. City of Lago Vista, supra, 532 U.S. 318 and People v. McKay, supra, 27 Cal.4th 601. Because the Supreme Court specifically rejected this precise argument in Knowles, I believe this court is required to reject the argument here.
Of course, even were we to do so, the question would remain whether the search was valid as a consensual search. At the hearing on the motion to suppress, defendant contended that her consent was not voluntary pursuant to People v. Stier, supra, 168 Cal.App.4th 21, because the officer continued to restrain her in handcuffs when there was admittedly no longer any legitimate rationale for doing so, and pursuant to People v. Lingo (1970) 3 Cal.App.3d 661, because the officer detained defendant beyond the time necessary to perform his legitimate functions. The trial court indicated that the circumstances surrounding defendant's detention were similar to those in the Stier case, and requested further briefing and argument on the question of the voluntariness of defendant's consent to be searched. At the continued suppression hearing, however, the court made no factual finding concerning that issue, but rather ruled that the search was lawful as one incident to arrest. Because I would reverse that ruling, I would remand this matter to the trial court for a finding on the voluntariness of defendant's consent.
ARMSTRONG, J.