Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC894876.
McAdams, J.
Defendant Andrew Michael Anchondo was charged with first degree burglary of a residence (Pen. Code, §§ 459-460, subd. (a)) with an enhancement that the house was occupied at the time of the burglary (§ 667.5, subd. (c)(21)). The information alleged one prior strike conviction (§§ 667, subds. (b)(i); 1170.12), two prison priors (§ 667.5, subd. (b)), and one prior serious felony conviction (§ 667, subd. (a)).
All further statutory references are to the Penal Code.
After the court denied defendant’s motion to suppress evidence seized from his car, which was parked in front of the house that was burglarized, defendant pleaded no contest to attempted first degree burglary and admitted the enhancement allegations, except the enhancement for burglary of an occupied dwelling (§ 667.5, subd. (c)(21)), which was stricken. Pursuant to a plea agreement, the court sentenced defendant to seven years in prison (one year for the attempted burglary, doubled for the prior strike conviction, plus five years for the prior serious felony). The remaining charges and allegations were dismissed.
Defendant contends that the court erred when it denied his motion to suppress, arguing that the police did not have probable cause to search his car. We conclude that there was probable cause and will affirm.
The facts are based on the evidence presented at the hearings on the motion to suppress.
On January 7, 2008, San Jose police were dispatched to the home of Tami Boroughf on a report of a residential burglary in progress. Boroughf lived in a single-family home in a residential neighborhood.
Around 9:00 a.m., Boroughf heard a loud banging sound on the side door to her garage, as if someone was trying to get into the house. It sounded like the person was using an ax. Boroughf called 911 at 9:08 a.m. and reported loud noises on the side door to her garage. Forty seconds later, she told the dispatcher that there was a blue Lincoln Town Car parked in front of her house and that there was a man in front of the house. Boroughf caught a glimpse of the man just before she hid in a closet.
Thirteen officers in 10 separate cars responded to the call. San Jose Police detective Robert Fischer, the officer who searched the Town Car, was the only witness at the hearings on the motion to suppress.
Detective Fischer responded to the dispatch “Code Three” (lights and sirens). When he arrived, he contacted the other officers were already on the scene. The officers had Boroughf step out of the house and made sure she was “okay.” Next, the officers searched the exterior of Boroughf’s house, her back yard, and the interior of the house. They found a large, muddy footprint on the side door to the garage; they did not find an ax. The officers then checked the yards adjacent to Boroughf’s yard and a neighbor’s garage. The officers did not find any suspects. The officers established a one-block perimeter. After that, Detective Fischer was given two assignments: (1) check the Town Car and (2) photograph the car and the victim’s home.
Detective Fischer spoke to Boroughf and her husband about the car. They told the detective they did not recognize the car and it had only been there a short time. Tami Boroughf said the car was not there when her husband left for work at 8:30 a.m., about 30 minutes before she heard the burglar.
Detective Fischer thought the car was suspicious because its doors were unlocked, the keys were in the ignition, it was partially blocking Boroughf ’s driveway, and Boroughf did not recognize the car. Detective Fischer also noticed a wallet and a cell phone on the center of the front seat of the car. Detective Fischer checked the area around the car and did not see anyone who seemed to be associated with the car or anyone who was not a police officer. Based on his experience and training, including 20 years as a police officer, Detective Fischer thought that the car was attached to the suspect and that there might be evidence in the car. Detective Fischer explained that based on his training and experience, “suspects will leave keys in the ignition to rapidly escape from crime scenes.” It also appeared to him that the car had been parked rather quickly, since it was blocking the driveway. Based on these factors, Detective Fischer thought he had probable cause to search the car.
Detective Fischer opened the car door, retrieved the wallet, and looked inside the wallet. He found defendant’s driver’s license and a credit card or insurance card with defendant’s name on it. Detective Fischer had the dispatcher “run” the driver’s license; the license check came back with defendant’s name, address, and date of birth. Detective Fischer gave the wallet, the cell phone, and the car keys to Officer Bennett, who took over the investigation. After Detective Fischer photographed the car, it was towed to a warehouse for further investigation.
On cross-examination, Detective Fischer authenticated six photos he took of the car: three of the car’s interior and three showing the location of the car on the street. Detective Fischer took the exterior photos from different angles. He did not agree that one of the photos showed that the car was not blocking the driveway. In support of his motion to suppress, defendant submitted evidence that he bought the car about three weeks before the burglary.
Procedural History
At the hearing on the motion to suppress, the prosecution agreed that it was a warrantless search, but vigorously disputed defendant’s standing to challenge the search. Toward the end of the hearing, the prosecution withdrew its objection on the basis of standing. The court ruled on the merits that there was probable cause for the search.
Discussion
Defendant argues that there was no probable cause to search the car.
I. Standard of Review
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) This means that we must measure the facts, as found by the trial court, against the constitutional standard of reasonableness for the search and/or seizure. (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224.) “We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.” (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) We will affirm the trial court’s ruling if correct on any theory of applicable law. (People v. Zapien (1993) 4 Cal.4th 929, 976.) We examine the legal issues surrounding the potential suppression of evidence derived from a police search and seizure by applying federal constitutional standards. (People v. Robles (2000) 23 Cal.4th 789, 794.)
II. Governing Legal Principles
“The Fourth Amendment protects an individual’s reasonable expectation of privacy against unreasonable intrusion on the part of the government.” (People v. Jenkins (2000) 22 Cal.4th, 900, 971.)
With respect to vehicles, “the police may search without a warrant if their search is supported by probable cause.” (California v. Acevedo (1991) 500 U.S. 565, 579.) “If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross... authorizes a search of any area of the vehicle in which the evidence might be found.” (Arizona v. Gant (2009) ___ U.S.___ [129 S.Ct. 1710, 1721], citing United States v. Ross (1982) 456 U.S. 798, 820-821 (Ross).) “[P]robable cause justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” (Ross, at p. 825.) Known as the “automobile exception,” this “exception to the Fourth Amendment’s warrant requirement is rooted in the historical distinctions between the search of an automobile or other conveyance and the search of a dwelling.” (People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 100.) Those distinctions recognize a vehicle’s inherent mobility (ibid.; California v. Carney (1985) 471 U.S. 386, 392-393, 394, fn. 3) and acknowledge a reduced expectation of privacy in a vehicle as compared to a dwelling (Arizona v. Gant, at p. 1710).
“[P]robable cause to justify a warrantless search of an automobile ‘must be based on objective facts that could justify the issuance of a warrant by a magistrate....’ ” (People v. Carrillo (1995) 37 Cal.App.4th 1662, 1667, quoting Ross, supra, 456 U.S. at p. 808.) In determining probable cause, we must make a “practical, common-sense decision whether, given all the circumstances... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238.) “A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.” (Texas v. Brown (1983) 460 U.S. 730, 742.)
III. Analysis
Defendant argues that Detective Fischer’s testimony did not support a finding of probable cause to search the Town Car. Defendant attacks the court’s ruling in three respects. He argues (1) that the officer’s testimony that the car was blocking the driveway is not supported by the record; (2) that the other factors the prosecution relied on did not provide probable cause to search; and (3) that the officer failed to do any investigation prior to searching the car.
A. Assertion that the record does not support the detective’s testimony that the car was blocking the driveway
One of the facts Detective Fischer relied on in determining whether there was probable cause to search the car was the fact that the car “appeared to have been parked rather quickly to where it was blocking the driveway.”
Whether the car was blocking the driveway was disputed below. Detective Fischer testified that the car was “parked within the driveway” and that it was partially blocking the driveway. Defense counsel attempted to impeach that testimony with three photographs that Detective Fischer took on the date of the incident. The first photo was taken from behind the Town Car. It depicts the car’s license plate and rear bumper and portions of the victim’s lawn and driveway. The photo suggests that the rear bumper of the car is in line with one edge of the driveway. The second and third photos were taken from different angles and different spots across the street from the victim’s house. In the second photo, the car appears to be partially blocking the driveway. In the third photo, the rear bumper of the car appears to line up with one edge of the driveway. During cross-examination, defense counsel asserted that the third “photograph indicates that [the car was] not blocking entrance and exit from the driveway.” Detective Fischer disagreed with that assertion.
On appeal, defendant argues that “it is clear” from the third photo “that the vehicle is not blocking the driveway. While the vehicle is parked close to the driveway, the driveway is completely unobstructed.” He contends that Detective Fischer’s “testimony does not comport with the photographic evidence” and that “it was not credible for the officer to impute that the parking of the vehicle held some significance relating to probable cause to search.”
As we noted previously, it is not this court’s role to resolve the disputed factual question whether the car was partially blocking the driveway. On appeal from the denial of a suppression motion, “we review the evidence in a light favorable to the trial court’s ruling, adopt those express and implied findings of fact that are supported by substantial evidence, and independently determine whether those findings support the court’s legal conclusion that the search was reasonable under the Fourth Amendment. [Citations.] The standard of review recognizes that it is the exclusive province of the trial court to make the factual findings and credibility determinations that support a ruling and the legal theory underlying it.” (People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1197-1198; People v. Ratliff (1986) 41 Cal.3d 675, 686.) The trial court did not make an express finding on the disputed factual question whether the car was partially blocking the driveway. It did not state that it relied on that fact in finding probable cause to search. Defendant does not argue that there was insufficient evidence to support such an implied finding. He merely attacks the officer’s credibility. While the testimony of a single credible witness may constitute substantial evidence to support a court’s implied finding (Evid. Code, § 411; Marriage of Mix (1975) 14 Cal.3d 604, 614), we need not resolve the question whether there was substantial evidence that supported an implied finding that the car was blocking the driveway, since there is other substantial evidence that supports the court’s conclusion that there was probable cause to search the car.
B. Other factors the officer relied on provided probable cause to search.
Defendant argues that absent evidence that the car was blocking the driveway, there was nothing that connected his car to the burglary and that Detective Fischer’s belief that the car was connected to the burglary “can only be characterized as a reasonable suspicion, not probable cause.”
Detective Fischer based his probable cause decision in part on the manner in which the car was parked. Aside from his testimony that the car was partially blocking the driveway, the manner in which the car was parked included that the driver of the car had left the car unlocked, with the keys in the ignition, with a wallet and cell phone in plain view on the front seat. Detective Fischer testified that in his experience suspects leave the keys in the ignition to allow for a quick escape. That the driver had left a wallet and a cell phone behind supported the officer’s conclusion that the driver had exited the car quickly. Moreover, the car was parked directly in front of the burglary victim’s house. The victim did not recognize the car and it had been parked in front of her house only a short time prior. She had not seen it there at 8:30 a.m. when her husband left for work. The victim mentioned the car to the dispatcher while on the phone waiting for the police to arrive. When the victim told the dispatcher about the car, she also told her there was a man in her front yard. Before searching the car, the officers searched the victim’s home and yard, the yards to the adjacent properties, and a neighbor’s garage. They did not find a suspect or anyone in the area who was associated with the car. There was evidence that someone had tried to enter the victim’s home, based on her report of a loud noise at her side garage door and the footprint on the door. This evidence was sufficient for a person “of reasonable prudence” to believe that the Town Car was related to the person who attempted to enter the victim’s home and that contraband or evidence of a crime would be found in the car. (Ornelas v. United States (1996) 517 U.S. 690, 696). In In this case, the evidence identified the person who attempted to enter the home. In light of all of the circumstances, there was “a fair probability” that evidence of a crime would be found in the car and, thus, probable cause to search the car. (Illinois v. Gates, supra, 462 U.S. at p. 238.)
C. Detective Fischer’s alleged failure to investigate before searching the car.
Defendant contends that Detective Fischer failed to do any investigation prior to searching the car to confirm or dispel his suspicion that the car was related to the suspected criminal activity at the victim’s home. He argues that the officer should have inquired at the homes on both sides of the victim’s house and three houses across the street to determine whether anyone there owned the car.
Defendant relies on the following quote from People v. Nabong (2004) 115 Cal.App.4th Supp. 1, 5, footnote 12: “ ‘An officer is not warranted In relying upon circumstances deemed by him suspicious, when the means are at hand of either verifying or dissipating those suspicions without risk, and he neglects to avail himself of those means.’ ” In Nabong, a police officer stopped the defendant’s car for driving with an expired registration tag. The officer saw a temporary registration tag in the defendant’s rear window and testified that in his experience about half of the apparent temporary registration tags are invalid. But there was no evidence that the defendant’s temporary registration tag was invalid and the officer made no effort to contact his dispatcher to determine the validity of the registration tag before stopping the defendant’s car. As a result of the stop, the officer found stolen property in the defendant’s possession. (Id. at pp. Supp. 2-4.) The court concluded that the officer did not have reasonable suspicion to stop the defendant, that the defendant had done everything required of him to operate his car lawfully, and that the officer should have checked with his dispatcher to confirm that the registration was invalid before stopping the defendant. (Id. at p. Supp. 4.) Consequently, the court reversed the order denying the motion to suppress.
This case is distinguishable from Nabong. In Nabong, the officer relied on a single fact (half of the temporary registration tags he had encountered were invalid). There was also an easy way to verify his suspicions (contacting his dispatcher). Here, there are numerous facts that supported Detective Fischer’s conclusion that he had probable cause to search the car. Although Boroughf mentioned the car early in her contact with the dispatcher, the officers did not jump to any conclusions and searched the victim’s house, her yard, adjacent yards, and even a neighbor’s garage before turning their attention to the car. Moreover, the Nabong court limited its ruling to the facts of that case, stating, “By this decision, this court does not intimate that in every case police officers must investigate further given the opportunity to do so before a lawful detention or arrest may be made. Only in the context of this case’s facts should that have happened.” (Nabong, 115 Cal.App.4th at p. Supp. 5, fn. 12.) For these reasons, defendant’s reliance on Nabong is misplaced.
Moreover, since there was probable cause to search defendant’s car, there was no need for the officers to conduct further investigation before searching the car.
Disposition
The order denying the motion to suppress and the judgment are affirmed.
WE CONCUR: Premo, Acting P.J., Elia, J.