Opinion
NOT TO BE PUBLISHED
Solano County Superior Court No. FCR274491
Kline, P.J.
At the request of Detective Daniel Valk of the Vacaville Police Department, Rebecca Johnson, a citizen-informant, arranged to make a controlled buy of methamphetamine from petitioner, Samuel Eugene White. Valk saw White and a female companion arrive at the scene of the buy in a Cadillac Escalade and watched the transaction take place. Almost immediately after the vehicle left the gas station, it was stopped by other officers as it approached a freeway on-ramp. White, who is a paraplegic, was removed from his vehicle, placed in the wheelchair he carried in the Escalade, and taken across the street to a Park and Ride parking lot. Officers lifted him from his wheelchair and, while he was in the air, pulled down his sweat pants and underpants, leaving his genitalia fully exposed while they searched for the buy money, which they found secreted in his crotch. White contends the scope of the search was unreasonable as no exigent circumstances necessitated a public in-field strip search. We agree and reverse the denial of White’s motion to suppress.
Penal Code section 4030, which “establish[es] a statewide policy strictly limiting strip and body cavity searches, ” defines a “strip search” as “a search which requires a person to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of such person.” (§ 4030, subds. (a) & (c).)
BACKGROUND
1. Procedural Background
By felony complaint, petitioner White was charged with sales of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a). In conjunction with his preliminary hearing, White moved to suppress evidence under Penal Code section 1538.5, arguing that he was “strip-searched in a public location” in violation of his Fourth Amendment rights. At the conclusion of the hearing, the magistrate denied the motion and held White to answer. White was then arraigned on an information alleging the same charge. He pled not guilty and renewed his motion to suppress, which was again denied. This petition for writ of mandate followed; we issued an order to show cause and heard oral argument.
Also charged in the complaint was White’s girlfriend and codefendant, Candice Ann Contreras.
2. Factual Background
The testimony of White and Detective Valk, the only witnesses who testified about the events leading up to the arrest and the search, does not significantly conflict. On February 27, 2010, at approximately 12:30 a.m., Rebecca Johnson, in exchange for favorable treatment in a pending case, arranged a drug purchase from White. Police monitored her text messages and cell phone conversations setting up the transaction. After they arrived at the prearranged meeting spot, the police searched Johnson and then gave her $160 in marked bills, which she took with her when she approached White’s Cadillac Escalade. Johnson went to the passenger side and talked to the occupants; when she returned she was searched again, she no longer had the buy money, but did have two grams of suspected methamphetamine.
The Cadillac drove away, but was soon stopped on the Hickory Street on-ramp to Route 80. White testified that after his companion, Candice Contreras, was removed from the vehicle, one of the officers pointed a weapon at him and told him not to move. After the other officer removed the wheelchair visible in the backseat, White was handcuffed and placed in the wheelchair. One of the officers wheeled White to a “Park and Ride” that was across the street. The other officer drove White’s car to the same site and parked the vehicle under one of the lights illuminating the parking lot. When asked to consent to a search, White refused, but the officers told him “that they’re going to search me anyways.” After the officers told him to stand up, White told them he could not because was a paraplegic.
White stated that he was then handcuffed him from behind and two officers, one on each side, lifted him out of the wheelchair into the air and, while he was “dangling” in the air, a third officer “snatched” his pants completely off and pulled his boxers down to his knees. While White was “completely exposed from [his] waist to [his] knees, ” a “bloody bandage” covering a bed sore fell from his body to the ground. White said $160 was found “between my private and my leg.” He put the money there because his pants had no pockets.
White said the search took place “in plain view” of cars he saw getting on and off the adjacent freeway, and customers of several businesses in the immediate area, including a theatre, a McDonald’s and a Chevron gas station that was about 80 yards away from the Park and Ride. While the search was being conducted, White saw approximately seven people around the gas station and at the McDonald’s, and saw “several cars” entering and leaving the nearby freeway. The officers made no attempt to shield White from the view of customers of the nearby businesses and passing drivers and their passengers.
Detective Valk agreed that the Park and Ride was “very well lit” and that a Starbuck’s, McDonald’s, gas station, pizza place, ice skating rink, and movie theater were all nearby. In his view, the gas station and theater are about 200 yards away, with the “Pizza Shack” closer, at a distance of “[a]bout 150 yards.” Although he could not remember if anyone other than police, White, and his codefendant were nearby, Detective Valk said it was “highly possible” people were leaving the movie theater while White was being strip-searched. Detective Valk could not recall how many cars were parked at the Park and Ride at the time of the search, but said the lot “was not full.”
3. Arguments and Rulings on the Motions to Suppress
At the initial motion to suppress that was heard with the preliminary hearing, the People argued simply that White “said himself he doesn’t have any pockets on those pants. So he’s subject to a full search.” Emphasizing that White’s description of the strip search was undisputed, White’s position was that the nature of the search required the police to take steps to protect White’s privacy. His counsel argued that “the fact the money was where it was [does not allow] the police to conduct any kind of search, no matter how invasive and no matter what the circumstances. This was a public parking lot. There was a streetlight there. There are people around, movie theater business around. And I don’t think the search can be justified under the circumstances.”
The trial court denied the motion, explaining that the search “took place in, apparently, a public parking lot, it was the middle of the night, it was 80 yards or 240 feet away from the Chevron station. [¶] And I frankly think since it was the defendant’s actions that put that questioned money where it was in the first place, to me that diminishes the reasonableness of any expectation of privacy he might have in that location. It wasn’t a body cavity search. There was no evidence that there was anybody in the immediate vicinity, except law enforcement and [the codefendant].”
After being held to answer and arraigned on the information, White again moved to suppress the fruits of the search, emphasizing that the fact that he put the money in his underpants did not reduce his expectation of privacy. The trial court again denied the motion. In doing so, the court relied on two factors: First, that “[t]here was no testimony that anybody actually observed—any member of the public actually observed him” and, second, “the fact that he chose to secrete the money in that area of his body, diminished his expectation of privacy in that area of his body.”
DISCUSSION
A criminal defendant may move under Penal Code section 1538.5 to suppress evidence obtained as a result of an unreasonable search or seizure. (See § 1538.5, subd. (a).) Section 1538.5, subdivision (i), allows a defendant, as White did here, to move to suppress evidence at the preliminary hearing and, if he loses, to renew the motion at a “special hearing” after the information has been filed. “[E]vidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing” and the trial “court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the [trial] court as to evidence and property not affected by evidence presented at the special hearing.” (Ibid.) On appeal, we review the magistrate’s factual findings for substantial evidence and presume their correctness. (In re Arturo D. (2002) 27 Cal.4th 60, 77; People v. Leyba (1981) 29 Cal.3d 591, 596-597 (Leyba), superseded by statute on other grounds, as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224.) We review questions of law independently, however, including the trial court’s application of the law to the facts. (Leyba, at pp. 596-597.)
In California, the reasonableness of a police search is a question of law, which we determine under the Fourth Amendment. (In re Tyrell J. (1994) 8 Cal.4th 68, 76, overruled on other grounds by In re Jaime P. (2006) 40 Cal.4th 128, 130.) A warrantless search is unreasonable per se unless the People justify the search under a recognized exception to the warrant requirement. (In re Tyrell J., at pp. 76, 79.) In determining whether a particular search is reasonable, we apply a balancing test in which we consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place where it is done. (See Bell v. Wolfish (1979) 441 U.S. 520, 559 (Bell).)
Although the Attorney General does not rely on it, we turn first to the trial court court’s determination that “the fact that [White] chose to secrete the money in [his underpants], diminished his expectation of privacy in that area of his body.” This turns Fourth Amendment jurisprudence on its head. If hiding contraband diminished the expectation of privacy in the area searched, then the results of a search would determine its constitutionality. But, as Justice Traynor recognized more than half a century ago, “a search, whether incident to an arrest or not, cannot be justified by what it turns up.” (People v. Brown (1955) 45 Cal.2d 640, 643; see also People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 821 and People v. Benjamin (1999) 77 Cal.App.4th 264, 275 [“probable cause for a search cannot be supported by the results of the search”].) Similarly, one’s expectation in the privacy of his “private parts” is not diminished because he placed contraband near his genitalia. Indeed, it is hornbook law that the Fourth Amendment protects areas where the defendant has “an expectation of privacy in the area searched.” (United States v. Salvucci (1980) 448 U.S. 83, 93.)
Given White’s expectation of privacy in the area searched, we turn to the reasonableness of the search. In doing so, we emphasize that White does not argue that he was not subject to lawful arrest, nor that he could not be searched. His claim is simply that the search that took place was not conducted in a reasonable manner. Due to the absence of any justifying exigency, he maintains that the strip search that took place violates the Fourth Amendment. We agree.
People v. Smith (2009) 172 Cal.App.4th 1354 is most instructive. Police encountered Smith while investigating a possible burglary at a motel. He consented to search and acknowledged he was on parole. A patsearch revealed nothing, but the officer told Smith “he was ‘gonna check his pants’ ” as he had a “feeling that Smith had contraband in his underwear.” (Id. at p. 1358.) Smith was “search[ed] inside the crook of the open back door of a patrol car with the other two officers standing around Smith, to protect his privacy. The search took place in the back of the hotel parking lot, which did not face the street, but rather, a fenced-in area.” (Ibid.) The search consisted of the officer opening and lowering Smith’s pants about a foot, but not his underpants. Rather, the officer “pulled the elastic waistband of Smith’s underwear ‘out away from his body’ and saw a large bag the size of a baseball ‘sitting right on top of his penis.’ ” (Id. at p. 1358.) There was no evidence of anyone in the area. (Ibid.) Given that the search was conducted in a manner to minimize public viewing, that there was no evidence of anyone in the area, and Smith’s “private parts were not exposed, ” the Smith court “conclu[ded] that Smith was not subjected to a public strip search.” (Id. at p. 1363.) The Smith court found “[t]he intrusion was limited to that necessary to determine whether Smith was concealing narcotics and did not constitute a broad invasion of his privacy and dignity rights. We deem the intrusiveness of the search even less significant in light of our conclusion that Smith had a sharply diminished expectation of privacy as a parolee.” (Ibid.)
The justifications for the search in Smith are wholly absent in the present case. Unlike in Smith, the actions by the police here exposed White’s “private parts” to persons in the area and significantly increased the possibility the strip search was seen by others. White was taken from the Hickory Street on-ramp, which Detective Valk described as having “low light, ” to the Park and Ride, which he said was “very well lit.” The police made no attempt to restrict the view of passers by, like placing White behind a vehicle or flanking him to provide some privacy; instead they lifted him out of his wheelchair and held him aloft while pulling down his pants and underwear, which action may well have called attention to the event.
As we have said, in denying the renewed motion to suppress, the trial court relied in part on the fact that “[t]here was no testimony that anybody actually observed—any member of the public actually observed” White. It is true no one testified that a member of the public observed White as the officers held him in the air naked from the waist down, but neither was there any testimony (or other reason to think) the search was not observed by anyone. Moreover, the uncontradicted testimony of White and Detective Valk, the only percipient witnesses who testified, was that White’s nakedness could have been seen by drivers and others in the area. White stated that at the time he was searched “several people” were at the gas station and others were entering and leaving the McDonald’s. Detective Valk did not recall seeing “pedestrians around after the car stop, ” but conceded it was “highly possible” that there were people leaving the movie theater at the time of the search. The gas station and McDonald’s, according to the trial court, was “80 yards or so from the place where this occurred, ” although the theater was about 200 yards away. In other words, the search was conducted in public.
Even if the search was not conducted in public, we are unaware of any law, and respondent to points to none, that says that Fourth Amendment protections do not apply to strip searches conducted in private. For instance, in Bell, the United States Supreme Court considered whether strip and visual body cavity searches of pretrial detainees violated the Fourth Amendment, finding such searches could be conducted on less than probable cause. The searches in question in Bell were apparently not conducted in public, but that fact was not dispositive. (Bell, supra, 441 U.S. at pp. 558-560.) Indeed, the trial court in Bell found, and the Court of Appeal affirmed, that the searches were a Fourth Amendment violation. (See United States ex rel., Wolfish v. Levi (1977) 439 F.Supp. 114, 146-150; Wolfish v. Levi (1978) 573 F.2d 118, 131.)
As earlier noted, the United States Supreme Court stated in Bell, supra, 441 U.S. 520, that an evaluation of the reasonableness of a challenged search must “balanc[e]... the need for the particular search against the invasion of personal rights that the search entails.” (Id. at p. 559.) Factors to be considered are “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” (Ibid.) Bell emphasizes that the place in which the search is conducted is particularly important. Public in-field strip searches require more than mere probable cause. To survive constitutional scrutiny, there must be reason to conduct such a search immediately, before the detainee can be removed to a more private setting. This is so because “[b]oth strip and body cavity searches ‘entailing the inspection of the anal and/or genital areas have been accurately described as demeaning, dehumanizing, undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of one’s personal privacy.’ ” (U.S. v. Ford (E.D. Va. 2002) 232 F.Supp.2d 625, 631(Ford).)
Ford involved a roadside strip search during rush hour in which the defendant’s buttocks were exposed to passing motorists. Ford’s vehicle was stopped because of a cracked windshield. As he approached the vehicle, Officer Monahan smelled burnt marijuana and thought Ford appeared nervous, had an accelerated heart rate, and was “motioning to his right, as if concealing something.” (Ford, supra, 232 F.Supp.2d at p. 626.) He asked Ford to exit the car and then handcuffed him. Ford appeared to be “clinching his buttocks as he was walking to the rear of the car.” (Ibid.) Upon patsearching the outside of Ford’s clothing, Officer Monahan again observed Ford “clinching his buttocks.” (Ibid.) After his backup arrived, Monahan put on latex gloves, “pulled down Mr. Ford’s shorts and boxer briefs, revealing his naked body to below his buttocks.” (Id. at p. 630.) This “occurred in broad daylight on the side of the George Washington Parkway, a heavily traveled roadway, at approximately 7:23 p.m., at the tail end of rush hour.” (Ibid., fn. omitted.)
The court in Ford found the search unconstitutional because it was not justified by any exigency: “No testimony was proffered that the defendant was attempting to destroy the evidence, or that he possessed a weapon or some means to subvert the legal process. The only evidence before the Court is that Mr. Ford was clinching his buttocks; however, the Court fails to see how, by clinching his buttocks, the defendant was going to destroy the evidence. The body cavity search could have waited until Mr. Ford was taken to an appropriate location for such searches. The Court also concludes that the character of the item Officer Monahan felt was the size of a thumbnail. When he initially searched Mr. Ford through his outer clothing, the item was not immediately apparent as crack cocaine. Officer Monahan was so excited that he felt compelled to display Mr. Ford’s buttocks, to spread his buttocks apart, and to reach in between his buttocks to retrieve the item. The Court finds no justification for such an invasive search under the circumstances. [¶] Finally, the scene took place on the side of the George Washington Parkway at approximately 7:23 p.m. This time is considered the tail-end of rush hour when many motorists travel this road on their way out of the city. This scene took place in August at 7:23 p.m.; the Court takes judicial notice that, during the summer months, it would still be bright daylight during that time of the evening. These circumstances further support the Court’s conclusion that the search exceeded the bounds of decency and the limits of the defendant’s Fourth Amendment protection against unreasonable searches and seizures.” (Id. at pp. 630-631.)
The reasoning of Ford is similar to that of Foster v. City of Oakland (N.D. Cal. 2009) 675 F.Supp.2d 992, which was an action against a city and certain police officers by plaintiff motorists who alleged systematic violations of their constitutional rights through the police department’s policy and practice of performing strip searches and body-cavity searches in public. (See also Foster v. City of Oakland (N.D. Cal. 2008) 621 F.Supp.2d 779.) In finding that one of the defendant officers violated as a matter of law the Fourth Amendment rights of one of the plaintiffs by subjecting him to an unlawful strip search, the court declared that certain factors must be present to “justify a strip search in the field: (1) there must be exigent circumstances; (2) the search may only be performed on persons who have been lawfully arrested on probable cause and may not be performed on anyone for whom there is no probable cause to arrest; (3) the search requires probable cause that is independent of the probable cause for the arrest; and (4) the search may only be performed when there is probable cause to believe that the arrestee is in possession of weapons, drugs, or dangerous contraband.” (675 F.Supp.2d., at p. 1004.)
The search in question began as a car stop of plaintiff Young in West Oakland. Upon smelling marijuana, the officer removed Young from the car. “Officer Bergeron then took Young to the back of the police car. While facing Young, he pulled down Young’s pants and underwear, revealing Young’s genitalia. Then Officer Bergeron shined a flashlight directly at Young’s genitalia, visually inspecting Young for up to a minute.” (Foster v. City of Oakland, supra, 621 F.Supp.2d at p. 784.)
The Attorney General attempts to justify the search that took place on the grounds that it “was relatively brief, nonviolent, minimally intrusive, and conducted in a reasonable manner.” We disagree. While the search may have been brief, the forcible lifting of a person who cannot walk from a wheelchair and dangling of him in the air while his pants and underwear are ripped off in a well lit area visible to the public is neither nonviolent nor minimally intrusive. Finally, as we have said, there was no need for such police conduct, which was “ ‘ “demeaning, dehumanizing, undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of one’s personal privacy.” ’ ” (Ford, supra, 232 F.Supp.2d at p. 631.) As White concedes, there was probable cause for the arrest; a post-arrest search could have been conducted in the privacy of the police station or even in the field under less objectionable circumstances, such as those in Smith.
CONCLUSION
For the reasons stated above, the court erred in denying the motion to suppress. The writ is granted and the trial court is instructed to enter an order granting the motion.
We concur: Haerle, J., Richman, J.