Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-071036-8
Richman, J.
Cynthia Dumas-Violette appeals from her conviction for possession of methamphetamine and transporting methamphetamine (Health & Saf. Code, §§ 11377, 11379, subd. (a)) on grounds that the contraband was discovered during an illegal search of the car she was driving. She argues that the police officer’s decision to impound the car, where the registration had expired more than a year earlier, was a pretext to allow him to search for evidence of illegal activity. She separately argues that the opening of a zippered nylon bag within the car was an unlawful search. We disagree, and we affirm.
FACTUAL BACKGROUND
A. The traffic stop and search
On January 3, 2007, at 12:25 a.m., Deputy Roger Canady of the Contra Costa County Sheriff’s Department was on patrol in a marked car on Main Street in Oakley. As he drove through the parking lot of a convenience mart and gas station, he noticed a brown Ford parked at a gas pump. A woman, later identified as defendant, walked out of the store and approached the car. The Ford had a valid registration sticker and there was nothing unusual about the car or the woman.
Nevertheless, Canady checked the car’s registration on his computer and learned that it had expired in December 2005, more than a year earlier. He did not stop the car immediately, but shortly thereafter, when he again spotted the brown Ford traveling eastbound on Main Street. Canady then activated his lights and pulled the car over.
He told defendant, who was alone in the car, that he had stopped her because the car’s registration was expired. He asked to see her driver’s license, which she produced, explaining that the car was not hers and she was borrowing it from a friend.
Canady noticed that defendant was leaning over to her right, towards the passenger seat, and appeared to be “messing with something or touching something under her arm.” He then asked if she had anything illegal in the car and she said she did not. He asked for permission to search the car, which she refused. Canady then informed her that he was going to impound the car and have it towed. He told defendant to gather her belongings and step out of the car. She grabbed a black purse, got out of the car, and was directed to the rear of the car for the officer’s safety. Canady testified she was free to leave at that point. He did not give her a ticket because it was not her car.
Canady then began to conduct an inventory search of the vehicle. He testified he was authorized under Vehicle Code section 22651, subdivision (o)(1) (now subdivision (o)(1)(A)) to impound any vehicle whose registration had expired six or more months earlier. Although he testified it was his department’s policy to impound such vehicles, there was no specific written policy; it was within the individual officer’s discretion. It was his own policy to always tow a car more than six months in arrears in its registration unless prevented by extenuating circumstances. If he was going to impound a vehicle he always conducted an inventory search to make a record of any valuable items left in the car.
All statutory references, unless otherwise indicated, are to the Vehicle Code.
In conducting the search, Canady located a gray nylon bank bag with a zipper top and the name “Cindy” written in the upper right-hand corner. He unzipped the bag and found four syringes containing a brownish liquid, and several baggies containing a crystal substance which he suspected was methamphetamine. He then handcuffed defendant and conducted a more thorough search of the nylon bag, which turned up a small digital scale, a glass pipe, a metal pipe, a spoon, more empty baggies, a paper that looked like a pay-owe sheet, and additional substances that he suspected were marijuana and methamphetamine. He searched the remainder of the interior of the car and its trunk without finding any additional contraband.
Canady testified at the preliminary examination that the crime lab had found that one baggie contained 1.47 grams of marijuana. Defendant was not charged with a marijuana offense.
Canady also evidently found among the items in the gray bag three tablets believed to be methadone and two tablets believed to be oxycodone. Defendant told him she did not have a prescription for methadone. She was initially charged with possession of those substances. (Health & Saf. Code, §§ 11350, subd. (a), 11055, subds. (b)(1)(N) & (c)(14).) Canady testified at the preliminary examination that a county criminalist had identified the substances in the tablets solely by their appearance. The magistrate found the evidence on that count insufficient and discharged defendant.
After he completed the search and the inventory paperwork, Deputy Canady called a tow truck and left the scene. He was not present when the car was ultimately towed.
After being informed of her Miranda rights, defendant admitted that she buys and sells methamphetamine to her friends. Following a preliminary examination, she was charged with transporting a controlled substance (methamphetamine) (Health & Saf. Code, § 11379, subd. (a)) and possession of a controlled substance (methamphetamine) for sale (Health & Saf. Code, § 11378). It was further alleged that she had suffered a prior conviction for possession for sale of a controlled substance, which both made her ineligible for probation (Pen. Code, § 1203.07, subd. (a)(11)) and constituted a sentence enhancement (Health & Saf. Code, § 11370.2, subd. (c)).
Miranda v. Arizona (1966) 384 U.S. 436.
B. The suppression motion
At the preliminary examination defendant moved under Penal Code section 1538.5 to suppress the evidence recovered from the gray nylon bag, alleging it was the product of an illegal search and seizure. She argued that the officer’s conduct in first asking about any illegal items in the car and asking permission to search suggested the inventory was a pretext for an investigatory search. The motion was denied because the magistrate found the search was reasonable and authorized by law (§ 22651).
Defense counsel expressly waived any argument that the traffic stop was illegal, saying, “We’re not contesting the traffic stop, we’re not.”
Defendant subsequently filed a motion to set aside the information under Penal Code section 995 based on illegal search and seizure, which was also denied. Defendant argued that she was illegally detained without reasonable suspicion when she was ordered out of the car and told to stand at the back of the car. She further argued that the inventory search was unlawful because it was not conducted in accordance with an established departmental policy and was not reasonable under the circumstances. Finally, she claimed the inventory search was not aimed at securing or protecting the car and its contents, but rather was a ruse to conduct an investigatory search.
The court denied the motion. It noted it was bound by the magistrate’s credibility decisions (People v. McDonald (2006) 137 Cal.App.4th 521, 529), but the defense argued it could base its ruling on the objective, undisputed order in which the events occurred. Defense counsel argued, for instance, that if the officer intended from the beginning to impound the vehicle for expired registration, there was no reason for him to ask permission to search. The court, however, concluded that he might have asked because it “looks good in a jury trial.” Ultimately, the court distinguished one of the key cases cited by the defense, People v. Aguilar (1991) 228 Cal.App.3d 1049, 1051-1054, in that the officer in that case admitted he was searching for evidence. Pointing out that he would only be “guessing” at Canady’s motive if he were to conclude the officer used the impoundment and inventory as a pretext to search for evidence of a crime, and finding no good cause to overrule the magistrate’s credibility determination, the court denied the motion.
C. The trial and the sentence
Deputy Canady repeated in more detail at trial the facts relating to the stop, the search, the items recovered, and his conversation with defendant at the time of her arrest.
A forensic toxicologist testified that the crystalline substances found in the gray bag included 12.29 grams of methamphetamine, and the vials of dark liquid retrieved from the syringes also contained methamphetamine. An expert narcotics officer testified that the methamphetamine was definitely a usable amount, and in his opinion it was possessed for sale. He reached that conclusion based on the large quantity of the drug, the packaging of smaller amounts in individual baggies, and the presence of a scale and extra baggies, as well as what appeared to be a pay-owe ledger.
Defendant took the stand and testified that she was 45 years old and had been using methamphetamine for 30 years. She typically took one dose intravenously a day and used a digital scale to measure how much she was taking so that she did not take too much or too little. She admitted that everything in the “Cindy” bag was hers. She denied being a dealer and denied telling Deputy Canady that she sold drugs.
She testified that she had a large quantity of methamphetamine when she was arrested because she and two friends had pooled their money so they could get a better price. She was going to divide it up with her friends. She explained the multiple baggies containing small amounts of methamphetamine as having been provided to her by various dealers as samples. She testified that the document regarded as a pay-owe sheet by the prosecution was, in fact, a Christmas list that she and her granddaughter had prepared.
The jury acquitted her of possession for sale, convicting her instead of simple possession. It also convicted her of transporting methamphetamine.
In a subsequent non-jury trial, the court found defendant previously had been convicted of violating Health and Safety Code section 11378 in March 1996.
On October 11, 2007, imposition of sentence was suspended and defendant was placed on three years’ probation, with 365 days in jail, some of which could be served in a 90-day residential drug treatment program.
DISCUSSION
I. THE LEGAL PRINCIPLES
The only issue raised on appeal is a renewal of the challenge to the legality of the car search, as well as the search of the nylon bag.
When a motion under Penal Code section 1538.5 is denied at the preliminary examination and reviewed in the trial court under Penal Code section 995, we review the magistrate’s decision directly, disregarding the intermediate decision of the trial court. (People v. McDonald, supra, 137 Cal.App.4th 521, 528-529.)
Ruling on a motion to suppress involves a three-step process: (1) the determination of the historical facts; (2) selection of the applicable law; and (3) application of the law to the facts to determine whether the rule of law was or was not violated in the particular case. (People v. Alvarez (1996) 14 Cal.4th 155, 182.) On the first step, we defer to the express and implied factual findings of the magistrate if they are supported by substantial evidence. (McDonald, supra, 137 Cal.App.4th at p. 529.) The second step involves a pure question of law which we decide de novo. (Alvarez, supra, 14 Cal.4th at p. 182.) Although the third step is a mixed question of fact and law, we exercise our own independent judgment in deciding the legality of the search on the facts so found. (Ibid.; accord, People v. Brendlin (2008) 45 Cal.4th 262, 268, cert. denied sub nom.Brendlin v. California (April 20, 2009) __ U.S. __ [129 S.Ct. 2008].)
A warrantless search is presumed unreasonable, and the prosecution bears the burden of justifying it. (People v. Williams (1999) 20 Cal.4th 119, 127 (Williams); see also, People v. Smith (2002) 95 Cal.App.4th 283, 300.)
An inventory search conducted in connection with a decision to impound a vehicle, including a search of the glove compartment, has been recognized as an exception to the Fourth Amendment’s warrant requirement, so long as the search is done in accordance with “standard police procedures.” (South Dakota v. Opperman (1976) 428 U.S. 364, 370, fn. 5, 372 (Opperman).)
An officer may also open closed containers found in the vehicle during an inventory if done in accordance with standardized police procedures. (Colorado v. Bertine (1987) 479 U.S. 367, 372 (Bertine).) This is true even though the standardized procedures give officers in the field discretion in deciding whether to tow the vehicle (id. at pp. 375-376; People v. Benites (1992) 9 Cal.App.4th 309, 326-328), or discretion to decide whether to open a given container (Florida v. Wells (1990) 495 U.S. 1, 4 (Wells); People v. Needham (2000) 79 Cal.App.4th 260, 266 (Needham)), so long as exercise of that discretion is based upon factors other than suspicion of criminality. Police procedures need not be in writing. (People v. Steeley (1989) 210 Cal.App.3d 887, 889, 891.)
II. THE INVENTORY SEARCH WAS REASONABLE AND DID NOT VIOLATE THE FOURTH AMENDMENT.
Defendant argues the search of the car was in fact an investigatory search for evidence, with the inventory being a pretext for a warrantless, and hence presumptively illegal, search. She also argues the deputy did not follow a standardized practice or procedure in opening the closed nylon bag within the car.
To support her claim of pretext, defendant points out that the officer: (1) asked if there was anything illegal in the car and considered her action in response to be suspicious; (2) asked permission to search, which he would not have done if he had been planning to impound and inventory the car regardless; and (3) searched the car before he called a tow truck, from which defendant infers that he might not have impounded the vehicle had he not found contraband during the search.
Defendant further argues that opening a closed container within the car—the gray nylon bank bag—violated the Fourth Amendment because it was not done pursuant to a standardized police procedure. (Wells, supra, 495 U.S. 1.)
The Attorney General argues, first, that defendant did not have standing to challenge the search because it was not her car, and she had been allowed to take her possessions with her when she left the car. Since she picked up only her purse when she exited, she abandoned any claim to the gray nylon bag left behind, effectively disclaiming any possessory or privacy interest in it. Ultimately, the Attorney General justifies the search on grounds that it was a lawful inventory search in conjunction with an impoundment authorized by law and by departmental policy, including the opening of the gray nylon bag. We do not address the standing issue because we find the search was lawful, even assuming defendant had standing to contest it.
A. The search of the car was a lawful inventory search.
The Attorney General justifies the search as a valid inventory of an impounded vehicle because the registration of the car defendant was driving had expired more than a year earlier. Section 4000 makes it illegal to “drive, move, or leave standing upon a highway, or in an off street public parking facility, any motor vehicle... unless it is registered and the appropriate fees have been paid under this code.” The Vehicle Code itself authorizes an officer to impound a car “[w]ith a registration expiration date in excess of six months before the date it is found or operated on the highway, public lands, or the off street parking facility.” (§ 22651, subd. (o)(1)(A).)
The Vehicle Code now also authorizes impound of a vehicle displaying an annual sticker “not issued for that vehicle.” (§ 22651, subd. (o)(1)(B).) That provision did not become effective, however, until after defendant’s arrest. The statute further provides that “the vehicle shall be released to the owner or person in control of the vehicle only after the owner or person furnishes the storing law enforcement agency with proof of current registration and a currently valid driver’s license to operate the vehicle.” (§ 22651, subd. (o)(3).) Thus, one purpose of the impound law appears to be to allow the state to take control of the vehicle in order to enforce registration and licensing requirements and to collect fees relating thereto.
In Opperman, the Supreme Court identified three distinct reasons for allowing inventory searches when a vehicle is impounded: (1) the protection of the owner’s property while the vehicle remains in police custody; (2) the protection of the police against claims or disputes over lost or stolen property; and (3) the protection of police from potential danger. (Opperman, supra, 428 U.S. at p. 369; see also Wells, supra, 495 U.S. at p. 4.) Indeed, “[w]hen vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents.” (Opperman, supra, at p. 369.)
In reviewing an inventory search, we focus on the reason for the impoundment and not solely on the purpose of the inventory. An inventory search cannot be justified if done pursuant to an unreasonable decision to impound the car. (People v. Aguilar, supra, 228 Cal.App.3d at p. 1053.) The fact that section 22651 authorizes a police officer to tow a vehicle under specified circumstances, however, has been found to provide a lawful basis to impound a vehicle and also to constitute a standardized inventory procedure in compliance with Opperman and Bertine (People v. Green (1996) 46 Cal.App.4th 367, 372-375 (Green); see also U.S. v. McCartney (E.D.Cal. 2008) 550 F.Supp.2d 1215, 1224 1225.)
Nevertheless, compliance with the letter of the law does not shield the officer’s conduct from Fourth Amendment challenge if the decision to tow in the particular circumstance is unreasonable. (People v. Williams (2006) 145 Cal.App.4th 756, 761-763 [where defendant was arrested in car parked in front of his own home, there was no legitimate reason to impound it].) On the other hand, the fact that it is not authorized by the Vehicle Code does not automatically make an impound and inventory search a Fourth Amendment violation, so long as it complies with the requirements established in Opperman and Bertine. (People v. Trejo (1994) 26 Cal.App.4th 460, 462-463.)
Canady’s testimony at the preliminary examination sufficiently justified his decision to impound the vehicle and to conduct an inventory search. He testified that it was department policy to tow cars whose registration had expired more than six months earlier, although there was no written policy to that effect. The department’s policy was “just to enforce the Vehicle Code,” which itself allowed for towing in that circumstance. Canady further testified that he personally applied that impoundment policy across-the-board as an “established routine,” unless there were extenuating circumstances (such as being called to address another more pressing law enforcement matter). He acknowledged there was some officer discretion allowed, and other officers might exercise their discretion differently. Having decided to impound the vehicle, Canady’s inventory of its contents was “routine practice” by which he abides “every time” he impounds a car.
The mere fact that some discretion was left to the individual officer does not invalidate the department’s policy or actions taken under it. Nothing in the Supreme Court’s precedent “prohibits the exercise of police discretion 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.” (Bertine, supra, 479 U.S. at p. 375.) Thus, although the police policy at issue in Bertine allowed an officer either to impound a vehicle or to park it in a public parking space and lock it, that degree of discretion did not offend the Fourth Amendment. (Id. at pp. 375-376.) Likewise in this case, the fact that the department’s policy may not have been adhered to in every instance by every officer does not deprive it of force, particularly where the local policy is grounded upon statewide standards reflected in the Vehicle Code. We see no reason why a sheriff’s officer should be prohibited from enforcing the Vehicle Code simply because other members of his department might enforce it less rigorously.
In Green, police officers stopped a car for an expired registration and discovered that the driver, who was alone in the car, did not have a valid driver’s license. (46 Cal.App.4th at p. 370.) The officers decided to impound the car in accordance with section 22651, subdivision (p). On the passenger seat they found a rock of cocaine. A subsequent search turned up a glass crack pipe in the defendant’s front pants pocket. (Id. at pp. 370-371.)The Court of Appeal upheld the search as a valid inventory search despite the fact that the prosecution produced no written department policy authorizing impoundment and search in those circumstances. (Id. at pp. 371-376.)The court held the Vehicle Code itself provided the “standardized police procedure” required.
Nevertheless, defendant argues that the “inventory” in this case was a mere pretext for an investigatory search because Canady asked if there was anything illegal in the car before he conducted the search. Defendant argues this shows that he was actually interested in discovering contraband, not enforcing the vehicle registration requirements. However, Canady referred to this as a “standard question” he asks when he makes a traffic stop. His question did not convert a lawful impoundment into a pretext for an investigatory search.
Similarly, defendant claims the search was, in fact, investigatory because Canady testified that defendant “was leaning over to her right on her right arm” and “it looked like that she was messing with something or touching something under her arm.” She infers that Canady decided to search the gray nylon bag because he “developed a hunch that Ms. Dumas had something to hide.” Canady did not testify that he was suspicious of defendant; rather, the gist of his testimony was that he had decided to tow the car based on the expired registration, regardless of defendant’s conduct. The magistrate credited Canady’s testimony concerning his reason for conducting the search, and we see no basis to second-guess his judgment.
Defendant also questions why Canady asked permission to search, suggesting he would not have done so if he had been planning to impound and inventory the car regardless of the answer. This does not, however, point ineluctably to the fact that he was using the inventory as a pretext for an evidentiary search. We cannot fault Canady for using a “belt and suspenders” approach. If, for instance, defendant had given him permission to search, that would have made the search even more clearly legal. He may also have simply considered it more polite to ask first, rather than simply to announce his intention to search. As the court observed in denying the Penal Code section 995 motion, Canady might simply have thought this would “look[] good in a jury trial.” This is not persuasive evidence that Canady was guilty of using the inventory search as a ruse.
Indeed, in one case cited by defendant, the police agency had a standard practice of asking the vehicle owner’s permission before conducting an inventory search. Where this standard practice was ignored, the search was deemed illegal. (U.S. v. Wanless (9th Cir. 1989) 882 F.2d 1459, 1463-1464.)
Finally, defendant points out that Canady searched the car before he called a tow truck, from which defendant infers that he might not have impounded the vehicle if he had not found contraband during the search. This is sheer speculation. Canady pulled the car over for an expired registration. There is no reason to assume he would have overlooked that violation and allowed defendant to drive off if she had behaved less “suspiciously.”
The fact that Canady waited to call the tow truck until after he had completed his inventory does not lead us to conclude that the inventory search was pretextual. Defendant seems to suggest it is standard impound procedure to call the tow truck first, but she cites only one case in which there was testimony to that effect. (People v. Scigliano (1987) 196 Cal.App.3d 26, 29.) Just because one police department follows that sequence does not make it unreasonable for a different department to follow a different sequence or to leave the sequence to the officer’s discretion.
The car defendant was driving was loaded with personal possessions, and Canady may have realized it would take him some time to complete the inventory. Canady testified at trial that it is “common practice” in his department to start the paperwork before calling the tow truck and that he “usually” tries to “time it” to have the paperwork finished by the time the tow truck arrives. It was not unreasonable to complete the paperwork before making the call.
Rather, the fact that Canady ran a check on the license plate (twice, to confirm that he had typed in the license plate correctly) and effected a traffic stop upon learning that the registration had expired more than a year earlier suggests that from the outset he intended to impound the vehicle for the expired registration unless the driver could produce evidence that the car was currently registered. That the vehicle was displaying a current sticker which apparently had not been issued to it further supported his decision to impound the vehicle. (§ 22651, subd. (o)(1)(B).) When defendant could not produce a valid registration, Canady’s suspicion that the car was being operated unlawfully was confirmed, and his decision to impound and inventory the vehicle was in accordance with California law and sheriff’s department policies. No Fourth Amendment violation occurred.
B. The search of the nylon bag was not unlawful within the context of the inventory search.
Defendant further challenges the inventory search because it involved the opening of a closed container within the car. This distinction is supported by caselaw, as illustrated by Wells, supra, 495 U.S. 1. There, a driver was stopped for speeding and subsequently arrested for driving under the influence. He gave the highway patrol officer permission to open the trunk of his car. After Wells was arrested, his car was towed to an impoundment facility, where two marijuana cigarette butts were found in the ashtray. The arresting officer then instructed the employees of the facility to open a locked suitcase in the trunk, which contained a large quantity of marijuana. (Id. at pp. 2 3.)
In holding the search invalid, Wells noted that the state highway patrol had “no policy whatever” regarding the opening of containers within an impounded vehicle. (Wells, supra, 495 U.S. at p. 4-5.) However, it emphasized that a “standardized police procedure” need not be an “all or nothing” matter. (Id. at p. 4.) The state supreme court thought Bertine forbade exercise of any discretion by the individual officer in deciding whether to open a given container. (Id. at p. 3.) But Wells held that a “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.” (Id. at p. 4.)
The Court cautioned that “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence” or “turned into ‘a purposeful and general means of discovering evidence of crime.’ [Citation.]” (Wells, supra, 495 U.S. at p. 4.) Wells made clear, however, that it forbade only “uncanalized discretion,” not discretion guided by “the nature of the search and characteristics of the container.” (Ibid.)
Moreover, in Wells there was more evidence to suggest that the inventory search was a pretext, including that the inventory had not been conducted before the car was towed, and the suitcase in the trunk was opened only after other incriminating evidence had been found in the interior of the car. Indeed, the arresting officer blatantly betrayed his intention to search the car because he suspected it contained drugs. (Wells, 495 U.S. at p. 7 (conc. opn. of Brennan, J.).) The opinion does not indicate that a thorough inventory of the car was performed, or instead whether the search ended when the cache of marijuana was discovered. It implies, however, that a written inventory of the car’s contents was never generated. (Id. at p. 6 (conc. opn. of Brennan, J.).)
In light of Bertine and Wells, the California Supreme Court has observed that the prosecution may be required “to prove more than the existence of some general policy authorizing inventory searches; when relevant, the prosecution must also prove a policy or practice governing the opening of closed containers encountered during an inventory search.” (Williams, supra, 20 Cal.4th at p. 138.) We do not read Williams as requiring a specific policy delineating in advance which containers may or may not be opened. Such a requirement would unduly bind the hands of law enforcement in its role as caretaker of property seized as part of a vehicle impoundment and would be inconsistent with the rule of Wells. Rather, we believe that if a law enforcement agency has trained its officers regarding the purpose of an inventory search and the types of items they should be looking for, and has provided them with a tow form upon which to record the inventory, that satisfies the requirement of a standardized procedure.
Even after Williams, California courts have held that a policy regarding the opening of containers during an inventory search need not be reduced to writing and may allow for officer discretion in determining which containers should be opened. “The police may exercise discretion in opening containers during inventory searches provided that discretion is exercised according to ‘standardized criteria’ [citation] or ‘established routine’ [citation] based on some standard other than suspected criminal activity. [Citation.]... For instance, an inventory policy permitting police officers to open closed containers when unable to ascertain the contents from examining the container’s exterior would not violate the Fourth Amendment.” (Needham, supra, 79 Cal.App.4th at p. 266.)
In Needham, as in the present case, the law enforcement agency had an oral policy requiring officers to fill out a towing form listing all valuables contained in a vehicle that they intended to impound. (79 Cal.App.4th at p. 266.) The court found this was sufficient to allow officers to open closed containers in a vehicle when necessary to determine the contents.
Needham, who was sitting on a motorcycle in a park, was detained in connection with a robbery investigation in which the suspect had escaped on a motorcycle. (Needham, supra, at p. 263.) Though he was soon cleared of involvement in the robbery, one of the officers noticed that the registration tag on the motorcycle’s license plate had expired. After confirming with dispatch that defendant was not the owner of the motorcycle, the officer decided to impound it. (Id. at pp. 263-264.) He discovered, during an inventory search, some drugs and paraphernalia in a duffel bag and pouch attached to the motorcycle. (Id. at p. 264.)
The Fifth District held that the search was valid, despite the lack of a written policy specifying under what conditions a container could be opened in an inventory search. In so holding, the court relied upon an oral policy of the sheriff’s department which required that “officers conducting an inventory search must check all valuables and property in the vehicle and record them on the towing form in as much detail as possible.” (Needham, supra, 79 Cal.App.4th at p. 264.)
This case is similar. Deputy Canady testified that his department had a policy to tow vehicles whose registration had expired more than six months earlier, in accordance with section 22651. He further testified to the purpose of the inventory search: “When we have vehicles that are towed, we want to avoid people who owned the vehicle saying that I had, you know, a diamond necklace or large sums of cash or [a] stereo. So we inventory items in the vehicle.” He also described the purpose of his own search in this case as being to “look in the car for any valuable items that could be taken during a tow.”
Canady elaborated further at trial, saying an inventory search is “used so that we can get an accurate list of anything of value that may be in the car like high value stereos, jewelry, large sums of cash, tools, clothing, those kinds of things that we want to list on the tow form in case the car is impounded.” He explained further, “Well, first hand, I want to make sure there is nothing of value in the car, so it comes back that the owner goes to pick up and they said I had $10,000 cash in my car and now it is not there. Inventory allows me to go through the car and visual [sic] there was no diamond ring or $10,000. That is why I go through the car.”
As noted in Bertine, the Supreme Court has “accorded deference to police caretaking procedures designed to secure and protect vehicles and their contents within police custody.” (479 U.S. at p. 372.) Given this deference, Canady’s description of his department’s policy of allowing officers to “look... for any valuable items” would inherently allow them to open containers that might contain such items, regardless whether he specifically testified to that point at the suppression hearing.
Canady described a “tow form” used by his department which included an area where the officer could “just list what was in the car,” such as “clothing, stereo equipment, tools, those kind of things.” The use of such a form is consistent with the Supreme Court’s demand that “[t]he policy or practice governing inventory searches should be designed to produce an inventory.” (Wells, supra, 495 U.S. at p. 4.) In this case, a complete inventory of the vehicle’s contents evidently had been generated, as Canady offered to recite what he had found in the trunk, but the magistrate stopped him.
In light of these facts, the officer’s conduct did not offend the Fourth Amendment. Canady’s testimony showed he complied with these policies by looking in a container where valuables might be found. He had described the gray zippered pouch as a “bank bag” “commonly used to make deposits at a bank.” Thus, cash or other small valuables could easily have been concealed within the bag. He further testified that he searched the trunk and interior of the vehicle as part of the inventory. This distinguishes the present case from Williams, where the Court expressed suspicion that the inventory was a ruse in part because the officers did not search the entire vehicle and complete an inventory form, and in part because the defendant had been under surveillance for drug activity before he was detained for a traffic violation. We think these factors weighed heavily in the court’s decision in Williams—and that they significantly distinguish that case from the one before us.
“Deputy Hunt was surveilling defendant on suspicion of drug-related offenses and had called Deputy Oliver for assistance before defendant made the right turn without signaling. Deputy Hunt was likely looking for an opportunity to search defendant’s truck. If he and Oliver truly intended to take an inventory pursuant to a preexisting policy or practice rather than to search for drugs, why did they fail to complete the inventory? Why, when they found what they assumed to be drugs, did their need to inventory defendant’s truck mysteriously evaporate? Having found the drugs, the police still needed to tow the truck, but apparently they were no longer very concerned about following policy. The inference is strong that they were never very concerned about following policy; Hunt opened the leather bags, not because he wanted to take an inventory pursuant to a preexisting policy, but because he suspected defendant of drug possession and wanted an excuse to ‘rummage’ for evidence.” (Williams, supra, 20 Cal.4th at p. 138.)
Although Canady did not testify specifically about when he was authorized by departmental policy to open a container and when he was not, the fact that he could articulate the purpose of the inventory suggests he had received proper orientation to the nature of the search to be conducted. An officer need “not use the magic words ‘standard procedure’ ” to support the conclusion that his testimony describes “an inventory search following impound of the vehicle [as] standard department procedure.” (Green, supra, 46 Cal.App.4th at p. 375.) Canady filled out an inventory form as part of a standardized procedure. He did not stop searching as soon as he discovered contraband. Once he had probable cause to arrest defendant he did, but then he returned to the car to complete his inventory of its contents. This case is closer on its facts to Needham and Green than it is to Williams and Wells.
When a sheriff’s department has trained its officers to look for valuable items in a vehicle before having it towed and has provided them with a form on which to record the contents of the vehicle, it has established a standardized practice sufficient to pass constitutional muster. We can infer from Canady’s matter-of-fact testimony that his department authorized its deputies to look for valuables in any containers where they might reasonably be found. That Canady and his partner completed the “tow form” with an inventory of items found in the car substantiates that they received training from their department in conducting and documenting an inventory search. This is not a case like Wells, in which the department provided “no policy whatever” on container searches in the course of an inventory, and the searching officer made statements clearly indicating that he was searching for contraband. Nor is it one like Williams, in which the detainee was already the subject of surveillance for suspected criminal activity before the “inventory search” was conducted. We accept the magistrate’s implicit finding that there was no reason to question Canady’s motives in conducting the search.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J. Lambden, J.