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People v. Fair

California Court of Appeals, Fifth District
Feb 10, 2011
No. F058631 (Cal. Ct. App. Feb. 10, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County Nos. BF127312A & BF127312B Louis P. Etcheverry, Judge.

Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Wayne Fair.

Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant Arlene Dena Sanders.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Cornell Acting P.J., Gomes, J., and Kane, J.

STATEMENT OF THE CASE

On April 28, 2009, appellants, Anthony Wayne Fair and Arlene Dena Sanders, were charged in an information with possession of cocaine base while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a), count one), possession of cocaine base (Health & Saf. Code, § 11350, subd. (a), count two), being felons in possession of a firearm (Pen. Code, § 12021, subd. (a)(1), count three), being felons in possession of ammunition (§ 12316, subd. (b)(1), count four), and, for Sanders only, resisting arrest (§ 148, subd. (a)(1), count five). An enhancement was alleged on count two against Fair for committing the offense while being armed with a firearm (§ 12022, subd. (a)(1)). Fair was charged with two prior strike convictions (§§ 667.5, subds. (c)-(j) & 1170.12, subds. (a)-(e)). Both appellants were charged with two prior prison term enhancements (§ 667.5, subd. (b)).

Unless otherwise designated, all statutory references are to the Penal Code.

On June 5, 2009, the trial court heard and denied appellants’ motion to suppress evidence. On September 4, 2009, the court accepted a plea bargain in which Fair pled no contest to count one and admitted both prior strike allegations in exchange for having one of those allegations dismissed and a stipulated prison term of eight years. Sanders pled no contest to count two in exchange for the dismissal of the remaining allegations and probation with a jail term of six months. On appeal, Fair and Sanders contend the trial court erred in denying their suppression motion. Appellants rely on the United States Supreme Court’s recent decision in Arizona v. Gant (2009) 556 U.S. ___ [129 S.Ct. 1710] (Gant). We do not find error and will affirm the judgment.

FACTS

At the suppression hearing, Bakersfield Police Officer Josh Finney testified that he was on duty on March 29, 2009, assigned to the police department gang unit. Finney was looking for a member of the West Side Crips named Bennie West who had an outstanding felony arrest warrant and had been spotted at a hotel on Union. Finney knew West and had personally seen him in the past. The dispatcher notified Finney that West was in a black car. While traveling westbound on “V” Street, Finney observed a black Ford Crown Victoria traveling south on “V” Street.

There was a female driver and a black male passenger wearing a gray hooded sweatshirt. Finney made a U-turn and followed the Crown Victoria. The car failed to stop for a stop sign. Finney activated the lights to his patrol car to stop the female driver who drove past a few houses before parking the car, exiting it, and walking toward the front door of a house. Finney exited his car, followed the female, and told her to stop.

The female, Sanders, continued walking toward the front door of the house. Finney began to raise his voice to stop her. Finney continued to tell Sanders to stop. Sanders continued to walk until she reached the front door of the house. Sanders opened the security screen door and made a throwing motion with her right hand before turning around and complying with Finney. Finney had Sanders sit on the curb and arrested her for delaying his investigation pursuant to section 148.

Officer Scott Drewry was assigned to the gang unit on March 29, 2009. Officer Ursery was Finney’s partner that day. When Drewry drove up to the residence, Ursery was talking to Fair, who was not handcuffed. Drewry also talked to Fair. Drewry initially asked Fair about West. Drewry asked Fair if he was on probation or parole. Fair replied that he was not. Fair also denied possessing drugs or weapons. When Drewry asked Fair if he would consent to search of his person, Fair replied affirmatively. Drewry did not have his gun drawn and Fair was not handcuffed.

Drewry had Fair place his hands on the trunk of the Crown Victoria and conducted a pat-down search. Drewry felt a bulge in a coin pocket that he thought might be drugs and asked Fair if he could take it out. Fair replied affirmatively. Drewry removed the item that turned out to be a plastic baggie containing a white powdery substance. Drewry handcuffed Fair and placed him under arrest.

Drewry explained he was familiar with the area where the Crown Victoria was stopped, working there for about eight years. It was a high gang area and a high narcotics area. Drewry had made multiple arrests for narcotics and weapons there. Drewry read Fair his Miranda rights. Fair waived his Miranda rights and agreed to speak to Drewry. Fair admitted the cocaine in his pants belonged to him.

Miranda v. Arizona (1966) 384 U.S. 436.

Drewry told Finney he had found illegal drugs on Fair. Drewry asked Sanders if she had the keys to the car. She replied that she did not know where they were. Finney thought Sanders threw the car keys into the house. Sanders denied permission to search the car and Sanders later admitted to throwing the keys into the house. Other officers later obtained the car keys. Finney searched the Crown Victoria. There was a brown towel on the seat directly behind the driver’s seat with a nine-millimeter pistol underneath it.

Officers obtained permission to enter the home to look for West. In doing so, they found the keys to the car and used the remote keyless entry system to enter the car.

Ruby Thomas testified for the defense that officers did not have permission to go into the house and had to search Fair twice to find any drugs. Thomas explained that Sanders was also searched. The People argued the search was incident to a lawful arrest and was a valid impound search. The trial court recited the pertinent facts and the holding of the Gant decision and asked the parties to comment on it because the case was not cited in their briefs.

The People took the position that Gant was distinguishable from the instant action because the officers here were conducting an inventory search, not a search incident to a lawful arrest. Appellants argued that the officers needed search warrants to go into the house and into the car as well. Appellants pointed out that the car was not an instrumentality of the crime because even though Sanders ran a stop sign, the officers only needed to issue her a citation for what was no more than an infraction and there was no legal basis for impounding the car.

The court noted this was a difficult case and that there was no danger to the officers concerning appellants’ dominion and control of the inside of the vehicle at the time they were arrested. The court made a cryptic reference to the Gant case and then noted there was an issue of credibility concerning Fair’s comments to the officers. The court then denied the suppression motion as to both appellants.

DISCUSSION

Appellants contend the search of the car was unlawful because it was inaccessible to either appellant at the time it was searched and an impound search was not constitutionally authorized. Appellants argue that pursuant to Gant, the trial court erred in denying the suppression motion. The People concede there was no valid basis for an inventory search of the car, but that pursuant to Gant, the officers had the legal authority to search the car for additional evidence relevant to Fair’s possession of illegal drugs. We agree and will affirm the judgment.

In Gant, Tucson police officers knocked on the front door of a home that an anonymous tipster stated was being used to sell drugs. Gant answered the door, identified himself, and stated he expected the home owner to return later. (Gant, supra, 556 U.S. at p. __ [129 S.Ct. at pp. 1714-1715].) The officers conducted a background check and learned that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest. Officers returned to the home and arrested a man and a woman. Gant drove up in a car. Shining their flashlights into the car, the officers recognized Gant. Gant parked the car at the end of the driveway, exited it, and closed the car door. (Id. at p. __ [129 S.Ct. at p. 1715].)

The officers called out to Gant, who was about 30 feet away. When the officers met Gant, they were all 10-12 feet from Gant’s car. Gant was arrested and handcuffed. When other officers arrived, Gant was locked in a patrol car. Two officers searched Gant’s car, discovering a bag of cocaine in the pocket of a jacket in the backseat. (Gant, supra, 556 U.S. at p. __ [129 S.Ct. at p. 1715].)

The Supreme Court in Chimel v. California (1969) 395 U.S. 752 (Chimel) held that a search incident to arrest may only include the arrestee’s person and the area within the arrestee’s immediate control. The purpose of the rule is to ensure officer safety and preservation of evidence. (Gant, supra, 556 U.S. at p. __ [129 S.Ct. at p. 1716].) In New York v. Belton (1981) 453 U.S. 454 (Belton), the Supreme Court considered Chimel’s application in the context of automobile stops. (Gant, supra, 556 U.S. at p. __ [129 S.Ct. at p. 1716].) Belton held that when an officer lawfully arrests an occupant of a vehicle, as a contemporaneous incident of the arrest, the officer may search the passenger compartment of the vehicle as well as any containers therein. (Gant, supra, 556 U.S. at p. __ [129 S.Ct. at p. 1717].)

Gant held that the broad reading of Belton, that a vehicle search is authorized incident to every arrest of a recent occupant notwithstanding the passenger compartment will not be within the arrestee’s reach at the time of the search, must be rejected. Gant held “that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” (Gant, supra, 556 U.S. at p. __ [129 S.Ct. at p. 1719].) Gant further held that although it does not follow from Chimel, “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’” (Id. at p. __ [129 S.Ct. at p. 1719].)

Appellants focus their argument on the fact that it was unreasonable for officers to conduct a vehicle search based on Sanders’s running through a stop sign and obstructing the officers. If this was the entire factual profile of this case, we would agree that Gant would not permit a vehicle search under those circumstances. Fair consented to a search of his person and officers found illegal drugs. Fair was then placed under arrest and handcuffed.

The parties further discuss the fact that appellants’ arrest occurred about a month before the Gant decision was issued. Gant sets forth a stricter standard for officer searches of vehicles than required under the Belton doctrine. Belton permits officers to conduct full searches of vehicles after suspects are arrested even where there was no reasonable belief there was contraband in the vehicle related to the offense committed by the defendant that led to his or her arrest. The officers’ conduct here complied with the stricter guidelines set forth in Gant. We, therefore, do not reach the alternative arguments of the parties that the officers’ conduct did or did not fall within the good faith exception because their search was based on their understanding of the law prior to Gant.

The People argue, however, and we agree, that although the arresting officers here did not have any basis to conduct a search incident to Sanders’s lawful arrest, they did have a reasonable belief there was evidence relevant to Fair’s possession of illegal drugs inside the Crown Victoria when they searched it. When an officer conducts a valid pat-down search of a defendant and finds a firearm on the defendant, the officer has probable cause to arrest the defendant and may then conduct a search incident to the defendant’s arrest. (Gant, supra, 556 U.S. at p. __ [129 S.Ct. at p. 1719]; People v. Osborne (2009) 175 Cal.App.4th 1052, 1065.)

We further reject appellants’ contention that because the People argued there was a valid inventory search, on appeal they are limited to the theory argued by the prosecutor to the trial court. Appellate review is confined to the trial court’s ruling, not the reasons for its ruling. (People v. Baker (2008) 164 Cal.App.4th 1152, 1156.) Appellate courts may affirm a trial court’s ruling on a motion to suppress if it is correct on any theory of law applicable to the case, even if the trial court’s ruling is made for an incorrect reason. (People v. Smithey (1999) 20 Cal.4th 936, 972; People v. McDonald (2006) 137 Cal.App.4th 521, 529.)

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Fair

California Court of Appeals, Fifth District
Feb 10, 2011
No. F058631 (Cal. Ct. App. Feb. 10, 2011)
Case details for

People v. Fair

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTHONY WAYNE FAIR et al.…

Court:California Court of Appeals, Fifth District

Date published: Feb 10, 2011

Citations

No. F058631 (Cal. Ct. App. Feb. 10, 2011)