Opinion
A151087
08-17-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALEXIS BORGES-FLORES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17NF000621A)
This is an appeal from final judgment following entry of a no contest plea by defendant Michael Alexis Borges-Flores after the trial court denied his motion to suppress evidence pursuant to Penal Code section 1538.5 as the fruit of an unlawful search and seizure. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 10, 2017, a criminal information was filed charging defendant with the following felony and misdemeanor offenses: possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count one); possession for sale of methamphetamine (id., § 11378; count two) while armed with a firearm (Pen. Code, § 12022, subd. (c)); transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count three) while armed with a firearm (Pen. Code, § 12022, subd. (c)); possession by a felon of a concealed firearm in a vehicle (id., § 25400, subd. (a)(1); count four); possession by a felon of a loaded firearm in a public place (id., § 25850; subds. (a), (c)(1); count five); carrying a loaded, unregistered weapon (id., § 25850, subd. (a); count six); carrying a loaded firearm in a public place by a felon (id., § 25850, subd. (c)(1); count seven); carrying a loaded firearm in a public place while not the registered owner (id., § 25850, subd. (c)(6); count eight); being a felon in possession of a firearm (id., § 29800, subd. (a)(1); count nine); being a felon in possession of ammunition (id., § 30305, subd. (a)(1); count 10); possession of metal knuckles (id., § 21810; count 11); and driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count 12). In connection with counts one through 11, the information also alleged a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
The charges and enhancements stemmed from the following events occurring in Daly City in the early evening hours of January 14, 2017. Officer Alejandro Murillo was on vehicular patrol in Serramonte Plaza, near Hickey and Gellert Boulevards, in response to a string of auto burglaries in the area during the holiday season. As he approached the Bank of America parking lot, Officer Murillo saw a gray Dodge Neon driving slowly, as if searching for a parking space, although plenty of parking spaces were available. Once the Dodge Neon reached an intersection, Officer Murillo signaled to the driver that he or she should proceed; however, the vehicle remained stopped. Officer Murillo was unable to see the driver (who turned out to be defendant) or any other occupant due to the dark tint of the vehicle's windows. Officer Murillo thus proceeded through the intersection before stopping his police vehicle to see which way defendant turned.
After defendant turned right, Officer Murillo made a U-turn to note the Dodge Neon's license plate number. At that point, defendant accelerated to about 40 miles per hour and failed to yield for another vehicle, forcing that vehicle to stop suddenly. Defendant then parked the vehicle at a lot near the Bank of America and a Mexican restaurant. Believing defendant's tinted windows violated Vehicle Code section 26708, which barred placement of certain objects or material on side windows, Officer Murillo activated his emergency lights and directed his spotlight at the vehicle in order to see the occupants.
In response, defendant lowered his window about seven inches, prompting the officer to tell him to completely roll down his window, as well as the rear windows, which were also tinted. Defendant eventually complied. As Officer Murillo approached the vehicle, he could see both defendant and a front male passenger. Explaining that the tinted windows had prompted the stop, Officer Murillo asked the men for identification. Neither had a valid driver's license; rather, defendant produced a California identification card and his passenger a Mexican identification card. A subsequent records check revealed to the officer that both had suspended driver's licenses and the passenger also had an outstanding warrant in Solano County. Noticing defendant's nervousness, Officer Murillo called for back-up.
After the cover unit arrived a few minutes later, Officer Murillo asked defendant to step out of the vehicle, believing it would calm him. Defendant responded in the negative when asked whether he had any weapons or drugs on him and whether he would consent to a pocket search. He also responded, "no," when asked whether there were weapons or drugs in the vehicle and whether he would consent to a vehicle search. Defendant told the officer the vehicle belonged to "Shannon," and agreed to try to call her. Shannon did not answer the call, and defendant again refused to consent to a search.
At this point, Officer Murillo decided to have the Dodge Neon towed. He later explained on the stand that the Daly City Police Department gives officers discretion to decide whether to tow a vehicle if the driver has a suspended license. Thus, after considering that the licenses of both defendant and his passenger were suspended, that the vehicle's owner could not be contacted, and that the vehicle was parked in a high-crime area, Officer Murillo decided a tow was in order. He added that defendant was from Vallejo, making it more difficult to summon assistance with the vehicle from a friend or relative.
Murillo testified that in the past three months there had been 24 auto burglaries within a half-mile radius of the shopping center. --------
After calling for the tow, Officer Murillo conducted an inventory search of the vehicle. As he explained in court, "typically, prior to towing a vehicle, [the officers] want to make sure there [are] no valuables left in the vehicle, just in case . . . the driver of the vehicle states that something was taken from the vehicle." His colleague, Officer Jerel Tualaulelei, who assisted in the search, added that "any time we tow a vehicle . . . we have to conduct an inventory search of the vehicle" in order to uncover illegal contraband and to protect and account for the occupants' property.
Upon opening the driver's side door, Officer Murillo saw a firearm in the door panel, prompting him to request additional cover before continuing the search. Officer Murillo and Officer Cabatic handcuffed defendant and his passenger. Their subsequent search of the vehicle revealed the firearm (loaded), a bag of a white crystalline substance in the door panel (confirmed by testing to be methamphetamine), metal knuckles in the rear seat, and a methamphetamine pipe in the passenger side. Following the search, defendant was arrested and booked.
On February 15, 2017, defendant entered a plea of not guilty and denied all enhancements.
On February 21, 2017, defendant moved under Penal Code section 1538.5 to suppress evidence. Following a contested hearing on March 9, the trial court denied his motion. After this ruling, defendant entered a plea of nolo contendere to count one, possession of a controlled substance with a firearm, and count 11, possession of metal knuckles, and the trial court dismissed the remaining charges and enhancements in accordance with the negotiated plea.
On April 10, 2017, defendant was sentenced to a prison term of two years on count one, with a 16-month concurrent term on count 11. This appeal followed.
DISCUSSION
Defendant raises one argument on appeal. He contends Officer Murillo's warrantless search of his vehicle violated his Fourth Amendment rights under the United States Constitution because the search was a pretextual "ruse" to look for incriminating evidence rather than, as the officers testified, a "community caretaking" function to tow the vehicle and inventory the property therein. As such, defendant reasons, his motion to suppress any and all evidence derived from the illegal search should have been granted. He thus asks this court to reverse the judgment and remand the matter to the trial court to allow him to withdraw his no contest plea. The following legal principles govern.
" 'When reviewing the grant or denial of a motion to suppress, an appellate court must uphold the [lower] court's express or implied findings of fact if the facts are supported by substantial evidence.' " (People v. Lim (2000) 85 Cal.App.4th 1289, 1296.) We then employ our independent judgment to decide whether, under those facts, the search and seizure was legal. (People v. Ruiz (1990) 217 Cal.App.3d 574, 580; People v. Ayala (2000) 23 Cal.4th 225, 255.) Otherwise stated, the legality of a search or seizure is measured by " 'the facts, as found by the trier [of fact], against the constitutional standard of reasonableness.' [Citations.] Thus, in determining whether the search or seizure was reasonable on the facts found by the [trier of fact], we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d 729].)" (People v. McDonald (2006) 137 Cal.App.4th 521, 529.)
With respect to the substantive law, "state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. (In re Tyrell J. (1994) 8 Cal.4th 68, 76 [32 Cal.Rptr.2d 33, 876 P.2d 519]; In re Lance W. (1985) 37 Cal.3d 873, 886-887 [210 Cal.Rptr. 631, 694 P.2d 744].) 'Our state Constitution [Cal. Const., art. I, § 13] thus forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution [U.S. Const., 4th Amend.] as interpreted by the United States Supreme Court.' (In re Tyrell J., supra, at p. 76.)" (People v. Camacho (2000) 23 Cal.4th 824, 830.)
More specifically, our highest court has sanctioned the authority of a police officer to take inventory of property contained inside a vehicle without a warrant incident to the vehicle's impoundment. (South Dakota v. Opperman (1976) 428 U.S. 364, 369-373.) The court further recognizes law enforcement has a legitimate interest during an "inventory search" to open closed containers found inside the vehicle. However, to ensure an individual's Fourth Amendment rights are respected, an inventory search of an impounded vehicle, and in particular the opening of a closed container within such vehicle, must occur pursuant to "standardized criteria," such as a preexisting practice, policy or routine. (Florida v. Wells (1990) 495 U.S. 1, 4; People v. Williams (1999) 20 Cal.4th 119, 138.) As the United States Supreme Court explains, a police officer may exercise discretion in deciding whether to conduct an inventory search when impounding a vehicle "so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." (Colorado v. Bertine (1987) 479 U.S. 367, 375; accord, Florida v. Wells, supra, at p. 4 ["police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. . . . The allowance of [this] exercise of judgment . . . does not violate the Fourth Amendment"].)
Thus, ultimately, the relevant inquiry considers "whether a decision to impound or remove a vehicle, pursuant to the community caretaking function, was reasonable under all the circumstances" (People v. Shafrir (2010) 183 Cal.App.4th 1238, 1247), as well as whether the officer conducting the search intended to serve some community caretaking function rather than partake in a ruse to rummage through property in order to discover incriminating evidence (People v. Torres (2010) 188 Cal.App.4th 775, 791; Florida v. Wells, supra, 495 U.S. at p. 4).
Applying these principles to the facts at hand, we must therefore determine whether defendant is correct in his assessment that "the 'inventory search' in this case was a ruse Officer Murillo used to circumvent [his] refusal of permission to search his automobile," rather than a valid search incident to the vehicle's impoundment.
Below, the trial court found the prosecution had met its burden to prove by a preponderance of the evidence that the warrantless search was justified. In so finding, the trial court relied on the evidence that both defendant and his passenger had suspended licenses; that defendant had been unable to get in touch with the vehicle's purported owner (Shannon) to consent to the search or to make arrangements to retrieve the vehicle; and that "the rash of auto burglaries in the vicinity would meet the criteria of the public caretaking responsibilities of the police in connection with the vehicle . . . ." Affording all presumptions in favor of the lower court's factual findings, as the law requires (People v. Shafrir, supra, 183 Cal.App.4th at pp. 1244-1245), we accept the trial court's reasoning, as well as its ultimate conclusion that defendant's Fourth Amendment rights were respected.
First, with respect to Officer Murillo's initial encounter with defendant, it is "well settled that a police officer may approach a citizen, identify himself as a police officer and ask questions even without any objective justification." (People v. Rosales (1989) 211 Cal.App.3d 325, 330; see People v. Vibanco (2007) 151 Cal.App.4th 1, 14.) " '[A]n officer has every right to talk to anyone he encounters while regularly performing his duties . . . .' (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 .) [¶] . . . '[A]sking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.' (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 185 [159 L.Ed.2d 292, 124 S.Ct. 2451] [(Hiibel)].)" (People v. Vibanco, supra, 151 Cal.App.4th at p. 13.) As such, Officer Murillo was undoubtedly entitled, as an on-duty and in-uniform police officer, to approach defendant after observing his vehicle fail to yield in the parking lot and noting that, due to the vehicle's tinted windows, he was unable to see the vehicle's occupants, a potential violation of Vehicle Code section 26708. (Veh. Code, § 26708, subd. (e) ["clear, colorless, and transparent material may be installed, affixed, or applied to the windshield, side, or rear windows of a motor vehicle" if, among other requirements, "[t]he material has a minimum visible light transmittance of 88 percent" and "[t]he window glazing with the material applied meets all requirements of Federal Motor Vehicle Safety Standard No. 205 (49 C.F.R. 571.205) . . . ."].)
Further, with respect to Officer Murillo's subsequent decision to tow defendant's vehicle following admissions by defendant and his passenger that neither were licensed to drive, the record supporting his actions is as follows. When asked about his "practice" with respect to towing, Officer Murillo testified that he generally would call a tow and conduct an inventory search of the vehicle prior to towing where, as here, both driver and passenger are unable to take the vehicle due to having suspended licenses. Officer Murillo further explained that, "if a person's license is suspended and—in this case, I believe he was coming from Vallejo. And leaving his vehicle parked there would kind of risk his vehicle getting broken into based on the fact that there is . . . there has been auto burglaries in the past in that shopping center. And it would kind of be a little time wasting if I were to allow him to call someone to come pick up . . . come pick him up considering he was from Vallejo."
Defendant, of course, disputes these "facts" were sufficient to justify the officer's inventory search of the vehicle (which ultimately led to the discovery of a wealth of contraband, including the loaded firearm, methamphetamine, brass knuckles and drug paraphernalia). In doing so, defendant notes that Officer Murillo never actually arrested him for having a suspended license (although the officer testified that he believed he did), and that the officer was not certain his tinted windows violated the relevant Vehicle Code provision. In addition, defendant argues that the officer's testimony regarding his regular practice of towing a vehicle when the driver's license is suspended is undermined by his subsequent acknowledgement on cross-examination that, in the Daly City Police Department, whether to impound a vehicle is left, unfettered, to "the discretion of the officer if [the driver's] license is suspended."
We find nothing in defendant's arguments warranting reversal of the trial court's ruling. First, we disagree that Officer Murillo's testimony regarding his regular practice of towing vehicles where a driver has a suspended license is inherently inconsistent. That Officer Murillo ordinarily tows vehicles under such circumstances is consistent with the department's overall practice to leave this decision to individual officers' reasoned discretion. Contrary to defendant's suggestion, the record does not prove that the officer's discretion was left wholly unfettered in his case. Rather, our record reflects that, in accordance with Fourth Amendment case law, the officer's discretion was the product of his assessment of the overall circumstances rather than a mere "ruse for a general rummaging in order to discover incriminating evidence." (Florida v. Wells, supra, 495 U.S. at p. 4; see People v. Needham (2000) 79 Cal.App.4th 260, 266 [a police department's preexisting policy or practice with respect to impounding a vehicle need not be written down].) Specifically, as the trial court found, Officer Murillo considered several reasonable factors when deciding to tow defendant's vehicle and conduct an inventory search, including the fact that both defendant and his passenger lacked valid driver's licenses, that defendant lived in Vallejo and could not easily summon a friend or relative to retrieve the vehicle, that the whereabouts of the vehicle's owner (Shannon) were unknown, and that there had been a string of auto burglaries in the area that made leaving the vehicle overnight risky.
Moreover, in denying defendant's motion to suppress, the trial court expressly found credible Officer Murillo's testimony regarding his legitimate, non-pretextual reasons for towing defendant's vehicle and conducting the inventory search. There is no basis in this record to disturb the court's finding. Given that the trial judge, unlike this court, observed the officers' testimony firsthand, we decline to second-guess his judgment that it was "reasonable, credible and of solid value[.]" (People v. Johnson (1980) 26 Cal.3d 557, 578; see In re Arturo D. (2002) 27 Cal.4th 60, 77 [" 'the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court' "].)
Accordingly, for these reasons, we conclude that Officer Murillo and his colleagues did in fact have valid legal grounds for conducting the warrantless inventory search of defendant's vehicle prior to having it towed. Simply put, the record supports the trial court's findings that towing defendant's vehicle served appropriate community caretaking functions and that Officer Murillo was not motivated by any improper investigatory motive. No further showing was required. (People v. Torres, supra, 188 Cal.App.4th at p. 791; Florida v. Wells, supra, 495 U.S. at p. 4.) The trial court's judgment stands.
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Siggins, P. J. /s/_________
Pollak, J.