Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. YA070449. Eric C. Taylor, Judge.
California Appellate Project, Jonathan B. Steiner and Ann Krauz for Plaintiff and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Herbert Charles Messing Jr. appeals from his conviction of two counts of felony possession of controlled substances. His sole contention is that the trial court erred in finding that the arresting officers had probable cause to search a pouch that was located inside his van and in denying his motion to suppress evidence. We conclude that the trial court did not err, and we affirm the judgment.
STATEMENT OF THE CASE
In a two-count information filed on February 13, 2008, appellant was charged with possession for sale of a controlled substance in violation of Health and Safety Code section 11378 (count 1) and transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a) (count 2). Pursuant to Health and Safety Code section 11370.2, subdivision (c), it was further alleged as to both counts that appellant had three prior convictions for violations of Health and Safety Code section 11378. Appellant pleaded not guilty and denied the prior allegations. Appellant filed a Pitchess motion and the court denied it on April 14, 2008. Then, on April 16, 2008, appellant filed a motion to suppress evidence pursuant to Penal Code section 1538.5. After a hearing, the court denied the motion on August 19, 2008. Thereafter, appellant pled no contest pursuant to a plea agreement and admitted three prior convictions for violating Health and Safety Code section 11378. He was sentenced on count 2 to the middle term of three years and, for the oldest prior conviction, an additional three years for a total of six years in state prison. Pursuant to the plea agreement, the court dismissed count 1 and the remaining two prior conviction enhancements.
Section 11370.2, subdivision (c), provides for the imposition of a full, separate, and consecutive three-year term for each prior felony conviction of one of the drug-related offenses enumerated in the statute.
See Penal Code sections 832.7 and 832.8; Evidence Code sections 1043 through 1045; City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-82; Pitchess v. Superior Court (1974) 11 Cal.3d 531. Appellant does not challenge the trial court’s denial of his Pitchess motion.
The trial court granted appellant’s request for a certificate of probable cause.
STATEMENT OF THE FACTS
At about 4 p.m. on January 13, 2008, Officers Shawn Freeman and Jon Naylor were on Inglewood Avenue and spotted a blue van with a crack in the middle of the driver’s side of its windshield, which violated Vehicle Code section 26710. Sergeant Freeman, who was driving one or two car lengths behind the van, made a U-turn, and both officers then noted that the van failed to stop at a stop sign until it had passed considerably over the limit line, another violation. (Veh. Code, § 22450.) Based on these Vehicle Code violations, the officers initiated a traffic stop and saw appellant, who was driving. Appellant was “very nervous, fidgeting, twitching in his seat” even though Sergeant Freeman only asked for his driver’s license. Appellant “went toward the center console” and perhaps to the dash area, and then retrieved his wallet or his I.D. from his back pocket. After giving his I.D. to Sergeant Freeman, appellant reached up to the visor, even though it was obvious nothing was there. For purposes of officer safety, Sergeant Freeman asked appellant to step out of the van.
Appellant does not contest the validity of the stop or the request to see his driver’s license.
From a confidential informant, Sergeant Freeman had previous knowledge that appellant had been involved in a sale of methamphetamine and had stolen from stores and returned the merchandise for cash, cards or store credit. However, the People announced that they would not rely on this evidence, and the court struck the testimony that involved the informant.
Sergeant Freeman asked appellant if he had anything illegal on him, and he said he did. The officer searched appellant and found two large amounts of cash located in separate pockets. He also found two Home Depot gift cards. Based on the officer’s training, he formed the belief that the cash had come from either a narcotic sale or an impending narcotics transaction.
Sergeant Freeman asked appellant if he could search his car. Appellant asked why, and Freeman answered generally that he had received information about appellant’s involvement in narcotics sales and thefts from stores. Appellant denied stealing and said words to the effect that he did not know who would have told him such things. Sergeant Naylor also questioned appellant in a manner that suggested that he knew who the appellant was.
A couple of minutes after appellant was out of the van and talking to Sergeant Freeman, Sergeant Jon Naylor searched it because, in plain view from his position on the driver’s side outside the van, “ I saw a portion of the dashboard underneath the steering wheel had been pulled down slightly.” Part of the plastic had been pulled down about half an inch, exposing the interior portion of the dashboard area. He could “plainly see a black pouch with a zipper. And a silver chain hanging from it.” Based on his training in narcotics, Naylor formed the opinion that illegal drugs were concealed in the van. (However, the officer did not know what was inside the pouch until he opened it.) He pulled the gray panel away (it came off very easily) and removed the black zipper bag. When he opened it, he found seven bindles of a substance that he suspected to be methamphetamine weighing a total of 40 grams. He also found a digital gram scale. Sergeant Naylor went back to the rear of the van, placed appellant under arrest, and said “11378” to Sergeant Freeman, indicating he was arresting appellant for possession of methamphetamine for sale.
The driver’s door was open.
The court asked Sergeant Naylor the following question: ”You mentioned that in your experience, you investigated probably 100 cases in which you found hidden compartments in a vehicle [¶]... [¶] how many of those hundred cases did you find non-contraband materials, in other words, what you would describe as innocuous-type things, in one of those hidden compartments?”
Sergeant Naylor replied: “From time to time, we would. Generally, in those cases, we would find residue. Or some – something leading us to believe that our beliefs were correct.”
The court followed up: “... Did you ever find what appeared to be a totally innocuous, non-unlawful purpose, or I should say an innocuous or lawful purpose for the hidden compartment?”
“The witness: Not that I can remember.”
Andrew Kruse testified that on the day in question, appellant was helping him work on a deck in Lake Elsinore. He not only saw but drove the van in question, and the crack in the windshield did not obscure his vision, nor was there glare from it. He did not notice any gap under the steering column or a chain or black pouch protruding from that area. They drove back to Kruse’s house, talked for about half an hour while Kruse loaded his tools, and then appellant left.
Appellant testified that the windshield crack was small and did not impact his view of the road. After leaving Kruse’s house, appellant noticed a police car and saw it make a U-turn and follow him. Although he was driving well and making full stops behind the limit lines at stop signs, the police pulled him over. He immediately took out his driver’s license, but noticed that Sergeant Naylor was looking in the front windshield. Sergeant Freeman asked for his license, and appellant complied. He asked if they wanted to see his insurance information and registration, but the officer said no and told him to get out of the van. He led appellant to the back of the van where he told him to put his hands behind his back, grabbed his hands when appellant complied, and, without asking for permission, searched appellant’s pocket with his free hand. Appellant said he did not consent to any search. At this point, appellant saw the officer’s partner inside the van. Several minutes later, Sergeant Naylor came over with the black pouch in his hand; they had found “some drugs.”
Following the arrest, Sergeant Freeman took appellant’s cash from his pocket and told the transporting officer that if he found any more money, “to go ahead and keep it.” Appellant had more money in his other front pocket, so he “finagled it with my handcuffs... put it in my cheeks (meaning near his rectum) a little bit. Just because... I thought they were going to keep it.” Appellant kept money in different sides of his pockets; one bundle of cash represented what he had been paid for a legitimate construction job and the other bundle “was just the money I had on me.”
DISCUSSION
1. Standard of Review
The standard of review in an appeal such as this is well-known. “In ruling on a motion to suppress [pursuant to Penal Code § 1538.5], the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]” (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134; see also People v. Hernandez (2008) 45 Cal.4th 295, 298, 299.)
2. Sergeant Naylor had probable cause to remove the pouch from its location and search it
Both sides agree that the officers had probable cause to stop appellant. He had violated two sections of the Vehicle Code. The question is whether Officer Naylor had a right to go into the van and take out the pouch.
Individuals have a reduced expectation of privacy in motor vehicles because it can be impractical for law enforcement officers to obtain search warrants; thus, “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment... permits police to search the vehicle without more. [Citation.]” (Pennsylvania v. Labron (1996) 518 U.S. 938, 940, citing California v Carney (1985) 471 U.S. 386, 393.) Our Supreme Court has held that “probable cause for a search exists where an officer is aware of facts that would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search is in the particular place to be searched.” (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564.)
Our Supreme Court has also stated that “[l]aw enforcement officers may ‘draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” [Citations.]’” (People v. Hernandez, supra, 45 Cal.4th at p. 299, citing United States v. Arvizu (2002) 534 U.S. 266, 273.) This is consistent with what the United States Supreme Court held in Ornelas v. United States (1996) 517 U.S. 690, 700: A “police officer may draw inferences based on his own experience in deciding whether probable cause exists.”
The record demonstrates that once they had stopped the van, Sergeant Naylor took a position of advantage “offset on the passenger side. With a view of the interior of the van... from the front passenger side.” The door was open, and from the exterior of the van, he could see that a portion of the dashboard underneath the steering wheel had been pulled down slightly. The record also reflects that Sergeant Naylor had solid experience in the area of narcotics enforcement. He had been a police officer for 14 years by the date of this incident. He had undergone hours of training in drug abuse recognition identification. In addition, he had from two to three hundred hours of post accredited training classes about drug abuse recognition, identification, including possessing and selling narcotics. Before becoming a sergeant, he had had been a narcotics detective for about five years and had investigated at least a hundred cases related to drugs concealed in various places, including hidden compartments (including areas that were fashioned into compartments) within vehicles. As already noted, this witness had never found a hidden compartment that was used for what appeared to be a totally innocuous, lawful purpose. This squares with the result in People v. Lilienthal (1978) 22 Cal.3d 891 (Lilienthal).
Despite appellant’s suggestion to the contrary, the facts in Lilienthal are close to what occurred here and support the trial court’s denial of the motion. The police stopped defendant for a traffic violation. Defendant got out of his car as the officer approached and asked to see his driver’s license. As defendant fumbled through his wallet, “a neatly folded squared piece of paper fell from his wallet to the ground. Defendant immediately placed his foot over the piece of paper. Officer Brookbush suspected that the paper contained narcotics and asked defendant to step back from it so he could examine it. Officer Brookbush testified that his suspicion was based on his experience in making numerous narcotics arrests where cocaine or heroin was transported in paper bindles similar to the one dropped by defendant. After finding in the packet a white powdery substance which he suspected to be either heroin or cocaine, Officer Brookbush looked through defendant’s wallet and found another similar paper packet containing the same white powdery substance. Defendant was arrested....” (Lilienthal, supra, 22 Cal.3d at p. 898.)
Upholding the search in Lilienthal, the Supreme Court focused on the officer’s testimony that his suspicion that the paper contained narcotics “was based on his experience in making numerous arrests where cocaine or heroin was transported in paper bindles similar to the one dropped by defendant. Reasonable grounds for believing a package contains contraband may be adequately afforded by the package’s shape, design, and the manner in which it is carried. (People v. McKinnon (1972) 7 Cal.3d 899, 917 [103 Cal.Rptr. 897, 500 P.2d 1097].) We conclude that a prudent man of Officer Brookbush’s experience could reasonably believe that the distinctively folded paper that fell from defendant’s wallet contained contraband. [Citations.]” (Lilienthal, supra, 22 Cal.3d at pp. 898-899.)
Sergeant Naylor’s testimony, like the officer’s testimony in Lilienthal as to his suspicion and the basis for it, distinguishes this case from decisions in which there was no evidence that the container, pouch, or object in question was suspected to contain contraband (e.g., People v. Norman (1975) 14 Cal.3d 929, 936-937) as well as decisions such as Thomas v. Superior Court (1972) 22 Cal.App.3d 972, 976-977, in which there was no evidence concerning the circumstances or prior visual experience that would have caused an officer to form the opinion that what he or she saw contained contraband.
Relying on People v. Chapman (1990) 224 Cal.App.3d 253 (Chapman), appellant notes that a search may not be justified solely on the appearance of a container despite an officer’s past experience with similar containers. (Id., at 258-259.) Chapman involved a snuff box that resembled a woman’s compact. (Id., at pp. 255; see also People v. Valdez (1987) 196 Cal.App.3d 799, 806-807 [film canister].) However, in this case there was more than just appearance: appellant was “nervous, fidgeting, twitching in his seat” even though the officer simply asked for his driver’s license. He reached to the visor where there was clearly nothing. He admitted he had something illegal on his person. Most important, Sergeant Naylor saw not only the pouch, but that it was located in an area of the van that had been tampered with.
Unlike this appeal, the officer did not elaborate on what constituted his “prior experience.” (People v. Chapman, supra, 224 Cal.App.3d at p. 257.)
The facts of the instant case bring it within the ambit of People v. Limon (1993) 17 Cal.App.4th 524, a Terry frisk in which the officer withdrew from defendant’s pocket a key box with a magnet on the back. The officer said that in his experience he had seen narcotics in a key case once before. (Id., at p. 538.) Although this experience alone might not have established the likelihood that narcotics were in defendant’s key box, “the nature of the container gained additional significance from defendant’s prior conduct in removing something from the nearby truck, engaging in a hand exchange, and replacing something on or near the truck. A hide-a-key container is designed for concealing its contents by magnetic attachment to the body of a vehicle. Magnetic key cases are not the kind that people ordinarily carry in their pockets. We conclude that probable cause to arrest defendant for possessing drugs arose from combining the discovery of the hide-a-key box in defendant’s pocket with the other circumstances summarized above indicating that what defendant was exchanging and concealing was drugs.” (Ibid.)
Terry v. Ohio (1968) 392 U.S. 1.
When the officer “... saw the hide-a-key box in defendant’s pocket, he ‘had a pretty good suspicion’ that narcotics were inside. Panighetti had seen narcotics in a key case once before, although he could not recall the details.” (People v. Limon, supra, 17 Cal.App.4th at p.531.)
For these reasons, we conclude that the trial court did not err when it denied appellant’s motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., BIGELOW, J.